Tutus Solutions, Inc. (Tutus) Appeal
Tutus appeals the approval of A92.20 and A92.22 as ANS also based on alleged non-compliance with the Commercial Terms Policy. In Tutus’ case, the alleged violation flows from text in the standards that requires all modifications to the MEWP be approved by the manufacturer, for example, section 4.5 Modifications of A92.22, states in part:
Modifications or additions to a MEWP shall be made only with prior written permission of the manufacturer. In case the manufacturer no longer exists, modifications to a MEWP shall be made under the direction of an engineer with expertise in MEWPs. 7
Tutus maintains that this requirement forecloses other engineers with requisite expertise who are “equivalents” under the Commercial Terms Policy from competing with manufacturers for business relating to modifications of MEWPs. Tutus argues that the delegation of authority over modifications to the manufacturer (or remanufacturer) exclusively is exacerbated by the fact that a recent revision to the A92 suite of standards expands the definition of “modification” to include any alteration of equipment under the standard. Tutus also pointed out during the hearing that equivalent international standards do not contain the requirement that modifications be handled exclusively by the manufacturer.
The BSR agrees with Tutus that the requirement that modifications or additions to a MEWP be made only with the permission of the manufacturer violates the Commercial Terms Policy. As the standard itself concedes, the manufacturer is not a “sole source” since, in the case where the manufacturer no longer exists, modifications can be carried out “under the direction of an engineer with expertise in MEWPs.” Thus, the standard could be adjusted to allow for experienced alternatives to perform modifications to the MEWP even if the manufacturer is still in existence.
Finally, Tutus raises a number of other alleged process flaws, which taken together, Tutus claims renders the A92 suite of standards unsuitable for national use and ones that should not retain their status as ANS.
TUTUS REQUESTED RESOLUTION
1. Withdraw the standard until consensus body member can provide alternative language that does not provide the sole approval of modifications to a single interest category.
2. Re-establish Accessories and Attachments into our standards which have been removed by dominance of sub-committee activities made possible by superior influence by both brand and relationships.
3. Mandate that sub-committee members be obligated to the same rule of law as the consensus body.
4. Make recommendations to the secretariat to stop all future attempts for member activities of this nature. Re-submit the corrected standards in their entirety for public comment.
This is why the appeal was partially granted. because having an unbalanced subcommittee, and not having a requirement that decisions reach a two-thirds vote is not a rule of the A92 sub-committee. Therefore if only 11 of the 50 sub-committee members vote; and the votes cased are 6 to 5. The decision will pass. In Tutus opinion this is not consensus voting.
The BSR does not agree with Tutus’ arguments on the other points raised, and finds that:
1) the argument concerning the alleged imbalance of the subcommittees is without merit as the ANSI Executive Standards Council (ExSC) has confirmed in a published interpretation that subcommittees are not bound by the same due process-based requirements as are consensus bodies, unless a developer’s procedures explicitly state to the contrary;
2) ANSI’s requirements for procedural appeals at the standards developer level do not require some of the characteristics the Appellant desires, for example, in-person hearings or recordings;
3) the A92 standards are not in conflict with one another, as ANSI defines the term, and ANSI’s definition of conflict and assessment of the same, does not reach OSHA rulings or requirements – as is also the case for coordination requirements;
4) comments received with a negative vote submitted in response to a recirculation opportunity are not required to be resolved in the current (final) phase of the voting process, rather, the ExSC has stated that such comments may be held for the next revision cycle as only one recirculation opportunity is required – of course, the decision to hold such comments for the next revision cycle is subject to a procedural appeal at the developer level, as was the case here.
For the reasons stated above, the BSR grants in part each of the two appeals. Specifically, the BSR grants the portions of both appeals that go to the merits of the arguments related to the Commercial Terms Policy. A requirement that the MOR be purchased solely from SAIA and used with every piece of equipment constitutes an “endorsement” of SAIA’s MOR under ANSI’s Commercial Terms Policy, and as such is not permissible in an ANS. In addition, the standards’ text providing that “[m]odifications or additions to a MEWP shall be made only with prior written permission of the manufacturer” is, in the BSR’s view, a commercial term and as such, is not permissible in an ANS. The other procedural arguments raised by Tutus are without merit.
Accordingly, the BSR directs that the A92 suite of standards be withdrawn as ANS, unless ASC A92 within 30 days of the receipt of this decision submits a plan for the BSR’s approval, demonstrating how the A92 suite of standards will be revised within 6 months of the date of this decision (or as soon thereafter as is possible) to bring them into compliance with the Commercial Terms Policy.8
6 See Annex A of this decision for the ExSC’s February 21, 2017 communication to SAIA and ARA. 7 See also section 6.2.2 Modifications of A92.20, which states: “The manual shall state that modifications or additions to a MEWP shall be made only with prior written permission of the manufacturer/remanufacturer. In case the manufacturer/remanufacturer no longer exists, modifications to a MEWP shall be made under the direction of an engineer with expertise in MEWPs. The owner shall retain permission and pass it on to any subsequent owner, as applicable.”
8 This decision is limited to the application of ANSI’s Commercial Terms Policy to the particular facts of these appeals and the A92 suite of standards. It does not address or relate to issues of safety or other requirements established by manufacturers in connection with the manufacture or use of equipment or parts or the use of OEM-manuals, decals or the like.
On July 25th 2018 the original appeal was filed to the ASD of the ANSI/SAIA A92. TUTUS remained unresolved on the reasons provided that our claims were without merit and requested a hearing to take place. The results of that hearing which were transmitted on October 12th, 2018 are as follows:
Decision: Based on the information presented, the panel unanimously finds for the Respondent, and that the Appellant did not demonstrate that due process provisions have not been followed.
The Appeals Panel acknowledges that much of the underlying basis of the Appellant’s claim is technical in nature. The Appellant’s Main Objection, as identified in the Appeal SAIA A92.20/.22 document dated July 25, 2018, is, “Propose an alternative procedure to the approval process to ensure timely and unbiased decisions supported by justification. Currently the final say belongs to the OEM; without giving guidance or requirements to act in an unbiased manner, to respond in a reasonable timeframe, or to provide justification/support for a refusal.” The Appeals Panel could not render an opinion on this claim because judgments on technical claims are beyond the purview of an ANSI standards Appeals Panel. Therefore, it is beyond the scope of an appeal to determine whether such provisions are needed in the SAIA standards.
The Appeals Panel bases its decision on the documents and testimony provided during this appeal.
Understanding the issue
Tutus brought specific language and evidence in the form of appeal addressing commercial terms violations.
A92.20 & .22 AMERICAN NATIONAL STANDARD CONTAINS UNFAIR PROVISIONS
220.127.116.11 The manual shall include, but not be limited to, the following information.
18.104.22.168-¶(d) warning(s) to use only replacement parts approved by the MEWP manufacturer/remanufacturer;
6.2.2 Modifications The manual shall state that modifications or additions to a MEWP shall be made only with prior written permission of the manufacturer/remanufacturer no longer exists, modifications to a MEWP shall be made under the direction of an engineer with expertise in MEWPs. The owner shall retain written permission and pass it on to any subsequent owner, as applicable.
4.5 Modifications – Only the owner can authorize a modification to a MEWP after meeting requirements of this section. Modifications or additions to a MEWP shall be made only with prior written permission of the manufacturer. In case the manufacturer no longer exists, modifications to a MEWP shall be made under the direction of an engineer with expertise in MEWPs. The owner shall retain written permission and provide it to any subsequent owner, as applicable. A user shall ensure that MEWP supervisors and operators are aware and comply with the requirement that only the MEWP owner can authorize a modification to a MEWP. 26
5.8 Replacement Parts – When any entity replaces a part or component, it shall be identical or equivalent to original MEWP part or component.
6.3 Assistance to Operators – If a user is unable to answer an operator’s question, such as rated capacity, intended use, maintenance, repair, inspection or operation of the MEWP, the user shall obtain the proper information from the dealer or manufacturer. The answer may also be obtained from a qualified person if the manufacturer is no longer in business.
A92.20 & .22 AMERICAN NATIONAL STANDARD CONFLICTS WITH OLD STANDARD AND OSHA
The proposed standard conflicts with part 6.2.4 of ANSI A92.2-1969 Assistance to Purchasers. Which states, if the dealer is unable to answer a purchaser or User question relating to rated capacity, vehicle specifications, maintenance, repair, inspection, or operation of the aerial device, or approval [Please note the inclusion of the word approval] the dealer shall obtain the proper information from the manufacturer and convey that information to the purchaser. Although A92.2 is not part of the draft standard, the reference made by OSHA specifically included in modifications is a key piece of evidence to recognize the importance for harmonization. Assistance to Purchasers or User is a legally binding requirement for the protection and assurance of response from the dealer. 6.2.4 clearly outlines that if the dealer is unable to answer, the proper information shall be obtained from the manufacturer and conveyed to the purchaser.
The United States Department of Labor Occupation Health and Safety Law states that when a modification takes place that:
Option 1) The Modification shall be certified in writing by the manufacturer.
Option 2) The Modification shall be certified in writing by any equivalent entity. [Example provided]
Option 3) The Modification shall be certified in writing by a nationally recognized testing laboratory.
Requirement of OSHA 1926.453(a)(2)
To be in conformity with all applicable provisions of ANSI A92.2-1969 and this section and to be at least as safe as the equipment was before modification. Correction should be made for Coordination/Harmonization of the ANSI-Accredited Standards so that we, the Developers, have made a good-faith effort to resolve potential conflicts and to coordinate standardization activities intended to result in harmonized American National Standards. Future implementers of this standard will be in conflict to addition options listed and available through OSHA law. Both, A92.20 & .22 Do Not Coordinate or Harmonize with Current Standards A92.2, OSHA Laws 1926.453 for Aerial Work Platforms & Consolidated Standards, or A92.3, .5, .6, and .8 from 2006.
Modifications – Currently are defined in such a way to describe any product, accessory or component not sold by the manufacturer (OEM) of the equipment. The A92.20 & .22 definition for; Modification: Change(s) to a MEWP that affects the operation, stability, safety factors, rated load, or safety of the MEWP in any way.
Based on the definition and the OSHA law for all aerial lift equipment covered by the A92.2 ANSI standards the entity that desires to use a component or part that “technically” is a modification by definition; will also be breaking the law if the manufacturer refuses to approve the modification in writing. The manufacturer is not obligated to respond with a denial or in a timely manner; nor is the manufacturer required to respond with a reason if the request in denied. This standard is confusing, frustrating, monopolistic in language and provides no secondary avenue to achieving or validating the safety of a modification without the approval of the OEM who is in competition with the other interest categories making the request.
The A92.20 & .22 gives no requirement for approving modifications or alternative method that is lawful.
OSHA 1926.453(a)(2) Aerial lifts may be “field modified” for uses other than those intended by the manufacturer provided the modification has been certified in writing by the manufacturer or by any other equivalent 28
entity, such as a nationally recognized testing laboratory, to be in conformity with all applicable provisions of ANSI A92.2-1969 and this section and to be at least as safe as the equipment was before modification.
Equivalent entity is not addressed or mentioned in the new suite of standards and Nationally Recognized Testing Laboratory(s) do not perform aerial work platform/MEWP testing. To be in compliance with OSHA LAW and conformity with ANSI A92.22 & .22 STANDARDS you will have to have your modification approved in writing by the OEM. This is unreasonable and unfair to give the OEM language that allows them to not approve products or modification of equipment and lead the consumer back to the OEM factory resources, either for part(s) or service.
The unfair provision included into the standard is further validated by a deeper explanation of modification with the specific inclusion of use of non-OEM parts in the operator’s manual as a requirement. A92.20-20XX Section 6.2 Operators Manual 22.214.171.124 ¶ d) warning(s) to use only replacement parts approved by the MEWP manufacturer/remanufacturer. Gives further evidence of the use of influence by having the standard specify that all operator’s manuals.
The specific remedial action(s) that would satisfy the concerns of the appellant:
BSR/SAIA A92.20-201X 6.2.2 Modifications
126.96.36.199 Modifications or additions which affect the capacity or safe operation of the equipment are prohibited except where the requirements of paragraphs 188.8.131.52(a), 184.108.40.206, 220.127.116.11, 18.104.22.168, or 22.214.171.124 of this section are met.
a) Manufacturer (or the equivalent) review and provide approval.
b) The manufacturer (or the equivalent) approves the modifications/additions in writing.
c) The load charts, procedures, instruction manuals and instruction plates/tags/decals are modified as necessary to accord with the modification/addition.
d) The original safety factor of the equipment is not reduced.
126.96.36.199 Manufacturer refusal to review request. The manufacturer is provided a detailed description of the proposed modification/addition, is asked to approve the modification/addition, but it declines to review the technical merits of the proposal or fails, within 30 days, to acknowledge the request or initiate the review, and all the following are met:
a) A registered professional engineer who is a qualified person with respect to the equipment involved:
b) Approves the modification/addition and specifies the equipment configurations to which that approval applies, and
c) Modifies load charts, procedures, instruction manuals and instruction plates/tags/decals as necessary to accord with the modification/addition.
d) The original safety factor of the equipment is not reduced.
188.8.131.52 Unavailable manufacturer. The manufacturer is unavailable and the requirements of paragraphs 184.108.40.206 (A) and (B) of this section are met.
220.127.116.11 Manufacturer does not complete the review within 120 days of the request. The manufacturer is provided a detailed description of the proposed modification/addition, asked to approve the modification/addition OR agrees to review the technical merits of the proposal but fails to complete the review of the proposal within 120 days of the date the manufacturer was provided the detailed description of the proposed modification/addition, and the requirements of paragraphs 18.104.22.168 (A) and (B) of this section are met.
22.214.171.124 Multiple manufacturers of equipment designed for use listed in 1.4 Exclusions. The equipment is designed for hazards listed in 1.4, contains major structural components from more than one manufacturer, and the requirements of paragraphs 126.96.36.199 (A) and (B) of this section are met.
188.8.131.52 Modifications or additions which affect the capacity or safe operation of the equipment are prohibited where the manufacturer, after a review of the technical safety merits of the proposed modification/addition, rejects the proposal and explains the reasons for the rejection in a written response. If the manufacturer rejects the proposal but does not explain the reasons for the rejection in writing, the employer may treat this as a manufacturer refusal to review the request under paragraph 184.108.40.206 of this section.
220.127.116.11 The provisions in paragraphs 18.104.22.168 and 22.214.171.124 of this section do not apply to modifications made or approved by the U.S. military.
BSR/SAIA A92.22-201X 4.5 Modifications
A user shall ensure that MEWP supervisors and operators are aware and comply with the requirements that modifications or additions to a MEWP shall be made with prior written permission of the manufacturer or after provisions in paragraphs 6.2.2 Modification of A92.20-201X are met.
Author and Appellants Comment . . .
The appeals process is lengthy and numerous opportunities are presented to either side of the argument to resolve the issue at hand. In our situation, TUTUS followed procedure and argued our concerns all the way the (BSR) Board of Standard Review with ANSI. It was at that time on May 7th, 2019 that our concerns that were not adequately addressed by the leadership of the ANSI/SAIA A92 Consensus body and Subcommittees would be heard.
The outcome of the BSR decision is not viewed as a win for TUTUS or the interest categories we represent. The standard process has been disrupted and will add confusion to industry members not well informed of ANSI, ANS procedures. TUTUS ask that you remain focused on training your employees and operators on the safe and effective use of powered access. As a proud member of the North American Regional Council with (IPAF) the International Powered Access Federation, As Chair of the AWP/MEWP Council with the (SAIA) Scaffold and Access Industry Association, and as a Consensus body member of the ANSI/SAIA A92 Standard Development Committee. I and TUTUS desire for you to comply and adopt the standards. We will remain focused on bringing issues previously sheltered to light and remain focused on the interest of the User of Mobile Elevated Work Platform Equipment.