United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. 

TNT CRANE & RIGGING, INC.,

Respondent. 

OSHRC Docket No. 16-1587 

ON BRIEFS:

Amy S. Tryon, Senior Attorney; Charles F. James, Counsel for Appellate Litigation; 

Edmund C. Baird, Associate Solicitor of Labor for Occupational Safety and Health; Kate 

O’Scannlain, Solicitor of Labor; U.S. Department of Labor, Washington, DC

For the Complainant

Pamela D. Williams, Attorney; Travis W. Vance, Esq.; Fisher & Phillips LLP, Charlotte, 

NC and Houston, TX

For the Respondent

DECISION AND REMAND ORDER

Before: SULLIVAN, Chairman; ATTWOOD and LAIHOW, Commissioners. 

BY THE COMMISSION:

TNT Crane & Rigging, Inc. is a crane service provider based in Houston, Texas. After a

TNT employee was electrocuted and suffered serious injuries when the boom of a crane was 

lowered and the hoist line contacted a power line, the Occupational Safety and Health 

Administration conducted an inspection and issued TNT a citation alleging two serious violations. 

Item 1 alleges a violation of 29 C.F.R. § 1926.1407(b)(3) for exposing employees to the hazard of 

electrical shock by failing to use at least one of the measures required to prevent encroachment or 

contact with the power lines while disassembling the crane. Item 2 alleges a violation of 29 C.F.R. 
2 

§ 1926.1407(d) for placing “[p]art of a crane/derrick, load line, or load (including rigging and 

lifting accessories) whether partially or fully assembled, . . . closer than the minimum approach 

distance under Table A (see 1926.1408) to a power line.” 

Administrative Law Judge Brian A. Duncan vacated both citation items on the grounds that 

the cited provisions did not apply to the work being done by TNT at the time of the accident. For 

the reasons discussed below, we reverse the judge’s decision and remand the case for further 

proceedings. 

BACKGROUND

On the day of the accident, two TNT employees, a spotter/rigger and a crane operator, 

finished a week-long project involving the installation of new antennas on a communications tower 

in Georgetown, Texas. The employees used a Grove GMK all-terrain 275-ton mobile crane to 

perform this work. With the project complete, the next task was to disassemble the crane for 

transport. 

To assist with the crane’s disassembly, TNT sent two additional employees—a second

spotter/rigger (“SR2”) and a driver/rigger—to the site. All four employees met to discuss a plan 

for “breaking the crane down” and loading it onto a semi-truck trailer. The agreed-upon plan 

called for the crane operator to first place the pulley “block” that was connected to the hoist line 

on the ground near the crane so that it could be removed from the hoist line. To land the pulley 

block at a location near the crane, the operator would retract the (telescopic) boom, raise the angle 

of the boom, and then lower the block to the ground. The hoist line’s “beckett,” a metal connector 

that attaches the end of the hoist line to the block, would then be detached from the block. Next, 

the boom would be lowered so that the “jib extensions”—lattice sections attached with steel pins 

to the end of the boom—would rest on the trailer’s flatbed. While lowering the boom, SR2 would 

hold the beckett at the end of the hoist line to keep the line taut as the boom descended. Once the 

boom was fully lowered, another crane (referred to as a “helper crane” or “assist crane”) would be 

used to assist in the removal of the pins and the jib extensions. 

The crew executed the first step of the plan—removing the pulley block. Then SR2 held 

onto the hoist line as the crane operator lowered the boom so that the jib extensions could be 

removed. While the boom was being lowered, the hoist line held by SR2 contacted a 14,400-volt 

power line, electrocuting him. SR2 was hospitalized with severe burns and other serious injuries. 
3 

I. DISCUSSION 

The two cited provisions, § 1926.1407(b)(3)1 and § 1926.1407(d)2, are contained in a 

section of the Cranes and Derricks in Construction standard entitled “Power line safety (up to 

350kV) – assembly and disassembly.” The judge agreed with TNT that these provisions do not 

apply to the specific activity its crew was engaged in at the time of the accident—lowering the 

crane’s boom—because at that point, they had not yet begun to physically disassemble the crane. 

We turn first to the issue of whether the meaning of “disassembly” under the crane standard is

plain. 

A. Plain meaning

When determining the meaning of a standard, the Commission first looks to its text and 

structure. Superior Masonry Builders, Inc., 20 BNA OSHC 1182, 1184 (No. 96-1043, 2003); 

Unarco Commercial Prods., 16 BNA OSHC 1499, 1502-03 (No. 89-1555, 1993). “If the meaning 

of [regulatory] language is ‘sufficiently clear,’ the inquiry ends there.” Beverly HealthcareHillview, 21 BNA OSHC 1684, 1685 (No. 04-1091, 2006) (consolidated) (citation omitted), aff’d 

in relevant part, 541 F.3d 193 (3d Cir. 2008). But, “in situations in which the meaning of 

1 The standards covering assembly and disassembly of cranes and derricks are found at 29 C.F.R. 

§§ 1926.1403 through 1926.1407. Under paragraph (3) of § 1926.1407(b)—titled “Preventing 

encroachment/electrocution”—the employer must implement one of five listed measures and is 

required to select a “measure . . . from th[e] list [that is] effective in preventing encroachment.” 

29 C.F.R. § 1926.1407(b)(3). The five measures are: (1) use of a dedicated spotter who is in 

continuous contact with the equipment operator (with four listed requirements for the spotter); (2) 

a proximity alarm set to give the operator sufficient warning to prevent encroachment; (3) a device 

that automatically warns the operator when to stop movement, such as a range control warning 

device, that is set to give the operator sufficient warning to prevent encroachment; (4) a device 

that automatically limits range of movement, set to prevent encroachment; and (5) an elevated 

warning line, barricade, or line of signs, in view of the operator, equipped with flags or similar 

high-visibility markings. See 29 C.F.R. § 1926.1407(b)(3)(i)-(v). 

2

 Section 1926.1407(d) states: 

Assembly/disassembly inside Table A clearance prohibited. No part of a 

crane/derrick, load line, or load (including rigging and lifting accessories), whether 

partially or fully assembled, is allowed closer than the minimum approach distance 

under Table A (see § 1926.1408) to a power line unless the employer has confirmed 

that the utility owner/operator has deenergized and (at the worksite) visibly 

grounded the power line. 
4 

regulatory language is not free from doubt,” the provision is considered ambiguous. Martin v. 

OSHRC (CF&I), 499 U.S. 144, 150-51 (1991) (brackets omitted); Exelon Generation Co. v. Local 

15, 676 F.3d 566, 570 (7th Cir. 2012) (“A regulation is ‘ambiguous’ as applied to a particular 

dispute or circumstance when more than one interpretation is ‘plausible’ and ‘the text alone does 

not permit a more definitive reading.’ ” (citation omitted)). The Secretary’s interpretation of an 

ambiguous provision is entitled to deference if it is reasonable. CF&I, 499 U.S. at 150-51; Delek 

Refining, Ltd. v. OSHRC, 845 F.3d 170, 175 (5th Cir. 2016). 

The definition section of the crane standard includes “Assembly/Disassembly” and states 

as follows:

Assembly/Disassembly means the assembly and/or disassembly of equipment 

covered under this standard. With regard to tower cranes, “erecting and climbing” 

replaces the term “assembly,” and “dismantling” replaces the term “disassembly.” 

Regardless of whether the crane is initially erected to its full height or is climbed in 

stages, the process of increasing the height of the crane is an erection process.

29 C.F.R. § 1926.1401. The judge viewed this definition as circular because, in his view, it uses 

the term “disassembly of equipment” to define the term “disassembly” and therefore, he found the

meaning of the term to be ambiguous. On review, the Secretary agrees with the judge that the term 

is ambiguous but claims his interpretation is entitled to deference, while TNT argues that “the plain 

meaning of ‘disassembly,’ as determined from the [standard’s] definition of the term and the 

regulatory text, is that disassembly does not begin until the crane is being physically 

disassembled.” In particular, TNT argues that the reference to the removal of pins in 

§ 1926.1404(f) and (h) and § 1926.1405 establishes that “disassembly” is limited to the actual 

removal of the crane’s components. 

We disagree with both parties in that we find the meaning of “disassembly” as applied to 

the facts of this case to be plain and the work being done at the time of the accident to fall within 

that meaning under the crane standard. Contrary to TNT’s claim, the standard makes no attempt 

to substantively define either “assembly” or “disassembly”—the first line of the definition simply

identifies the slash used in the term “Assembly/Disassembly” as meaning “and/or” 

(“Assembly/Disassembly means the assembly and/or disassembly of the equipment covered under 
5 

this standard.”).

3

 29 C.F.R. § 1926.1401 (emphasis added). Nonetheless, an examination of the 

text and structure of the crane standard makes clear that the meaning of “disassembly” is not 

limited to the time during which crane components are being physically separated. See FDA v. 

Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000) (“[A] reviewing court should not 

confine itself to examining a particular statutory provision in isolation. The meaning—or 

ambiguity—of certain words or phrases may only become evident when placed in context.”); Am. 

Fed’n of Gov’t Employees, Local 2782 v. Fed. Labor Relations Auth., 803 F.2d 737, 740 (D.C. 

Cir. 1986) (“[R]egulations are to be read as a whole with ‘each part or section . . . construed in 

connection with every other part or section.’ ” (citation omitted)); see also Otis Elevator Co., 24 

BNA OSHC 1081, 1086, 1087 n.10 (No. 09-1278, 2013) (reviewing language of the cited 

provision “along with the structure and context of the standard” to determine the scope of the 

standard), aff’d, 762 F.3d 116 (D.C. Cir. 2014). 

For example, the provision cited here under Item 2 expressly applies to a fully assembled 

crane: “[n]o part of a crane/derrick, load line, or load . . . whether partially or fully assembled, is 

allowed closer than the minimum approach distance under Table A . . . .” 29 C.F.R. 

§ 1926.1407(d) (emphasis added). Under another provision, the requirement that an 

assembly/disassembly supervisor address the hazard posed by a loss of backward stability is 

expressly not limited to when components are being attached or removed. Rather, this hazard must 

be addressed “before swinging the upperworks, [before] travel, and when attaching or removing 

equipment components.” 29 C.F.R. § 1926.1404(h)(11) (emphasis added). Thus, the mere fact 

that § 1926.1404(f) and (h) and § 1926.1405 include requirements regarding the removal of pins 

does not establish that “disassembly” is limited to the actual removal of a crane’s components. 

Most of the other assembly/disassembly requirements, unlike § 1926.1405, do not even 

mention pin or component removal—those requirements are phrased broadly and by their nature 

require actions that must be initiated as part of the assembly/disassembly process before pin or 

component removal even begins. See, e.g., § 1926.1404(e) (Protecting assembly/disassembly 

crew members out of operator view); (g) (Capacity limits); (h)(1) (Site and ground bearing 

3 The definition goes on to specify substitute terms applicable to tower cranes (“erecting” and 

“climbing” for assembly and “dismantling” for disassembly), none of which are relevant here 

because the crane at issue was not a tower crane. 29 C.F.R. § 1926.1401. 
6 

conditions); (h)(4) (Verifying assist crane loads); (h)(12) (Wind speed and weather). And as the 

Secretary points out, § 1926.1407 expressly applies before disassembly work, including pin 

removal, has begun; paragraph (a) states “[b]efore assembling or disassembling equipment . . .” 

the employer must determine whether any part of the crane could come within 20 feet of a power 

line during the disassembly process. In fact, the three options listed under §1926.1407 for 

addressing power line safety in the assembly/disassembly process all involve actions that must 

take place before any actual dismantling takes place. See § 1926.1407(a)(1) (Option 1 requires 

deenergizing and grounding the power line); § 1926.1407(b)(1) (Options 2 and 3 require a 

planning meeting and review of encroachment/electrocution prevention measures). 

Finally, the four provisions in § 1926.1405 are expressly identified as “additional 

requirements” for the dismantling of two specific components: “booms and jibs.” 29 C.F.R. 

§ 1926.1405 (“Disassembly—additional requirements for dismantling of booms and jibs . . . .”). 

As supplemental requirements with limited application, these provisions cannot be construed as 

defining the scope of the other assembly/disassembly requirements. See F.T.C. v. Sun Oil Co., 

371 U.S. 505, 515 (1963) (“There is no reason appearing on the face of the statute to assume that 

Congress intended to invoke by omission in [one provision] the same . . . meaning” of a term 

“which it explicitly provided by inclusion in [another provision]; the reasonable inference is quite 

the contrary.”). In short, these provisions read as a whole establish that active removal of a crane’s 

components is not a prerequisite for the cited provisions to apply. 

Accordingly, we find that the language and structure of the crane standard’s 

assembly/disassembly provisions show that the steps TNT took here were part of the disassembly 

process and constitute work that falls within the plain meaning of disassembly. 

B. Ambiguity

Even if the term “disassembly” were to be considered ambiguous, we find that the 

Secretary’s interpretation of the term is reasonable and therefore must be given deference. CF&I, 

499 U.S. at 150-51; Delek Refining, 845 F.3d at 175. Indeed, the crane standard’s regulatory 

history establishes that OSHA intended the lowering of a crane’s boom to position it for 

dismantling to be covered under the cited provisions as disassembly work. See U.S. Postal Serv., 

21 BNA OSHC 1767, 1779 (No. 04-0316, 2006) (“When the language of a standard fails to provide 
7 

an unambiguous meaning, we look to the standard’s legislative history.”), citing Oberdorfer 

Industr. Inc., 20 BNA OSHC 1321, 1328-29 (No. 97-0469, 2003) (consolidated). 

In the preamble to the crane standard’s final rule, OSHA describes the precise activity at 

issue in this case—lowering a boom to position it for dismantling—as an example of when the 

assembly/disassembly powerline assessment requirement in § 1926.1407(a) is applicable: 

For example, when disassembling a crane, the disassembly process takes place in 

an area that includes the area under and around the boom’s path as it is lowered to 

the ground (in most, but not all cases, the boom is lowered to the ground for the 

disassembly process). Under this provision, the employer must assess the 

proximity that the boom will be in to the power line in its path of travel to (and on) 

the ground.” 

75 Fed. Reg. 47,906, 47,945-46 (Aug. 9, 2010) (emphasis added).4

 And as OSHA explains in the 

preamble to the proposed rule, the negotiated rulemaking committee that developed the draft 

proposed rule had inadvertently omitted from the draft of this provision a reference to 

“disassembly,” and that OSHA added it to the proposed rule because “[t]he employer needs to 

evaluate power lines with respect to the direction or area of disassembly when preparing to

disassemble the crane.” (Emphasis added). 73 Fed. Reg. 59,714, 59,750 (Oct. 9, 2008). 

OSHA’s discussion of the prohibition against assembly/disassembly below power lines 

(§ 1926.1407(c)) in the final rule preamble also makes clear why that provision applies to a “fully 

assembled” crane: “in both assembly and disassembly, maneuvering an assembled crane out from 

under the power lines, or maneuvering a crane that is about to be disassembled under them, itself 

4 As this example is directly applicable to the instant case, TNT’s claim that it lacked notice of the 

Secretary’s interpretation lacks merit. See Phelps Dodge Corp., 11 BNA OSHC 1441, 1444 (No. 

80-3203, 1983) (“Inasmuch as the language of the standard is susceptible of different meanings, 

the preamble is the best and most authoritative statement of the Secretary’s legislative intent.”), 

aff’d, 725 F.2d 1237 (9th Cir. 1984). The company’s argument is further undercut by the fact that 

the power line provisions applicable to crane operation are similar to the cited 

assembly/disassembly provisions. Specifically, for the provision at issue under Item 1 (requiring 

the employer to implement one of the listed additional encroachment/electrocution prevention 

measures), the equipment operations provision also requires implementing one of a list of 

additional measures, most of which are the same as in the assembly/disassembly provision. See

29 C.F.R. § 1926.1408(b)(4). As to the provision at issue under Item 2 (partially or fully assembled 

crane must not breach the Table A minimum approach distance if closer than 20 feet to power 

line), the equipment operations provision also states that no part of a crane, load line or load may 

breach the Table A minimum approach distance when working closer than 20 feet to power line. 

See 29 C.F.R. § 1926.1408(a)(2). 
8 

poses a high risk of [power line] contact.” 75 Fed. Reg. at 47,949 (emphasis added). See Am. 

Sterilizer Co., 15 BNA OSHC 1476, 1478 (No. 86-1179, 1992) (standard’s preamble can be the 

“ ‘best and most authoritative statement of the Secretary’s legislative intent’ ” (citation omitted)); 

see also Tops Markets, Inc., 17 BNA OSHC 1935, 1936 (No. 94-2527) (relying on LOTO 

preamble to interpret ambiguous provision), aff’d, 132 F.3d 1482 (D.C. Cir. 1997) (unpublished 

table case). This interpretation is clearly a reasonable one, as the greatest risk of encroaching a 

power line occurs when the boom is still extended and/or being lowered in preparation for 

removing the crane’s components, not after the boom is already laying on the ground or is on the 

bed of a helper truck. In sum, we find the regulatory history supports the Secretary’s interpretation 

of disassembly as a process that is not limited to physical dismantling. Under that interpretation, 

lowering the boom was part of TNT’s disassembly process because it was done for the dismantling 

of the jib, a task which necessarily required removal of the pins connecting the jib to the boom. 

We disagree with the judge that the following statement from the final rule preamble 

supports his finding that the assembly/disassembly provisions apply only when components are 

actually being added or removed: 

Irrespective of whether the [tower] crane is initially erected to its full height, or is 

“jumped” in stages, the process of increasing the height of the crane is an 

assembly/erection process. Sections 1926.1403 through 1926.1406 apply 

whenever the crane’s height is modified. 

75 Fed. Reg. at 47,936. OSHA’s statement was in response to a commenter’s question specific to 

tower cranes, which is not the type of crane at issue here—whether, after a tower crane has been 

erected and used at one height, and sections are subsequently added to the crane to increase its 

height for use at a higher level, that subsequent “jumping or “climbing” (terms that are specific to 

tower cranes) is an “assembly” process. See 29 C.F.R. § 1926.1401 (definitions of 

“assembly/disassembly” and of “climbing”); 75 Fed. Reg. at 47,936 (“ ‘Jumping’ (or ‘climbing’) 

refers to the process of adding mast sections to a tower crane to increase its height.”). This 

language neither addresses nor suggests, as the judge found, that the assembly/disassembly 

standards only apply when the structural height of any type of crane is modified.5

5 The judge also relied on a statement in OSHA’s Compliance Directive, Cranes and Derricks in 

Construction Standard (CPL 02-01-057, Oct. 17, 2014), explaining that the provisions of 

§§ 1926.1403-1406 do not apply to equipment set-up and providing an example where “if the 

equipment operator merely unfolds and pins the boom of a fully assembled truck crane, it would 
9 

We also find the judge’s reliance on an unreviewed administrative law judge decision 

involving a citation under section 5(a)(1) of the Occupational Safety and Health Act, 29 U.S.C. 

§ 654(a)(1), to be misplaced. See Leone Constr. Co., 3 BNA OSHC 1979, 1981 (No. 4090, 1976) 

(unreviewed administrative law judge decision does not constitute binding precedent for the 

Commission). In Steel Constructors, Inc., No. 78-3839, 1980 WL 10389 (OSHRC ALJ, Sept. 8, 

1980), the general duty clause citation alleged that the employer had allowed an employee to 

disassemble an unsupported boom section of a truck crane. The judge vacated the citation based 

in part on his finding that the disassembly of the boom section had not yet begun because the 

equipment necessary for its dismantling had not yet been brought to the worksite and the boom 

was not yet resting on the ground. 1980 WL 10389 at *4. Steel Constructors, however, predates 

the existence of the crane standard at issue here, so it did not involve the term “disassembly” within 

the context of that standard or even an analogous standard as the case arose under the general duty 

clause—as such, the rulemaking and deference considerations that exist here did not pertain. In 

addition, the judge’s rationale was specific to the citation: he found that at the time the employee 

was removing pins from the boom section, the cited employer was under no obligation to institute 

the safety measures referenced in the citation—installing supports for the boom—because at that 

point the employer had not intended for the removal of the boom’s pins to have begun. Rather, 

the employee had unforeseeably begun to remove them on his own. Id. at *4-5. Therefore, Steel 

Constructors is inapposite.

Finally, in light of the crane standard’s regulatory history, we reject two other arguments 

raised by TNT. First, the company claims that “each witness with knowledge of the crane industry 

and its operations testified . . . that disassembly of the crane would not begin until the actual 

removal of the first section of the jib[.]” TNT does not explain the relevance of the testimony of 

“witnesses with knowledge of the crane industry and its operations” to this issue, specifically that 

of TNT vice-president for Health, Safety and Environment Troy Pierce, TNT’s expert witness Matt 

Gardiner, and the driver/rigger who was sent to the worksite to assist with disassembly.

6

 To the 

be inappropriate to apply the [assembly/disassembly] requirements.” There is no dispute that 

equipment set-up was not at issue here, so this example is irrelevant.

6 Pierce and Gardiner testified that disassembly begins when pins are being removed. Although 

the driver/rigger’s testimony suggests that he also considered disassembly to begin with pin 
10 

extent TNT is arguing that the testimony of these witnesses collectively establishes that the word 

“disassembly” as commonly used in the construction industry does not include lowering a boom 

for disassembly, and that this is relevant to the meaning of “disassembly” under the crane standard,

we find this claim lacks merit. The testimony of these witnesses is contradicted by the CO’s 

interview statements of the two employees who worked on both the completed project and the 

disassembly plan: the crane operator, who has 22 years of experience (“[w]e were done and began 

to disassemble the crane”), and the spotter/rigger (“[w]e started disassembl[ing] the crane”).7

 

Second, TNT argues that the Secretary’s interpretation of disassembly would cause 

“considerable confusion” in the crane industry because it is “based upon the purpose of the action 

taken and not on the nature of the action itself.” TNT offers no explanation for why an employer 

would not know if it is lowering a boom as part of a construction operation or for disassembly of 

the crane—indeed, there is no dispute here that TNT’s work at the site had been completed and a 

removal, he stated in his signed interview statement that on the day of the accident, “we started 

breaking down the crane.” 

At the hearing, the judge overruled the Secretary’s objection to Gardiner being qualified as an 

expert “to the extent [TNT is] proffering testimony about industry standards [that] are not 

applicable to this proceeding;” the judge qualified Gardiner “as an expert . . . on the subject matters 

of crane operation, crane disassembly, and compliance with OSHA crane standards and ASME 

standards dealing with cranes.” We find that it was error to qualify Gardiner as an expert with 

respect to “compliance with OSHA crane standards.” See Goodman v. Harris Cty., 571 F.3d 388, 

399 (5th Cir. 2009) (“[A]n expert may never render conclusions of law.”), citing Snap-Drape, Inc. 

v. Comm’r, 98 F.3d 194, 198 (5th Cir. 1996); Erickson Air-Crane, Inc., No. 07-0645, 2012 WL 

762001, at *3 n.7 (OSHRC, Mar. 2, 2012) (finding judge properly excluded expert testimony 

consisting of legal opinion). Similarly, to the extent TNT is claiming that the driver/rigger and 

Pierce opined that the cited provisions do not apply to lowering the boom for disassembly, and 

that their opinions in this regard are relevant to this issue, its argument is rejected. Id. 

7 The testimony TNT relies on is also contradicted and outweighed by the fact that the negotiated 

rulemaking committee (“C-DAC”) tasked with developing the crane standard was comprised of 

industry stakeholders, including construction crane users, owners, manufacturers, and operators 

(including two representatives of the International Union of Operating Engineers), all of whom 

had many years of relevant experience. See 75 Fed. Reg. at 47,907-09. C-DAC, whose 

composition was designed to be representative of the construction crane industry, see 75 Fed. Reg. 

at 47,909, chose to include a “fully assembled” crane in § 1926.1407(d) and the backward stability 

requirement (which is applicable even before any component is removed) in § 1926.1404(h)(11), 

and submitted no comments objecting to OSHA’s statement in the proposed rule preamble that the 

assembly/disassembly power line assessment requirement would apply to lowering the boom for 

disassembly. See 75 Fed. Reg. at 47,945-46. 
11 

crane disassembly plan developed and agreed to by the crew, two of whom were sent to the site 

by the company solely to assist with disassembling the crane. As such, all of the employees were 

aware that the boom was being lowered pursuant to their plan for disassembling the crane. 

For these reasons, we conclude that the Secretary’s interpretation of § 1926.1407 accords 

with the plain meaning of the standard and, even if the standard is ambiguous in this regard, the 

Secretary’s interpretation is reasonable and entitled to deference. See CF&I, 499 U.S. at 150-51. 

Accordingly, we reverse the judge, find that the cited provisions are applicable here, and remand 

this case for further proceedings. 

SO ORDERED.

/s/ 

 James J. Sullivan, Jr.

 Chairman 

/s/ 

Cynthia L. Attwood

Commissioner

 /s/ 

 Amanda Wood Laihow 

Dated: March 27, 2020 Commissioner
12 

Some personal identifiers have been redacted for privacy purposes

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

 DOCKET NO. 16-1587

 

 

Appearances:

Christopher Lopez-Loftis, Esq. U.S. Department of Labor, Office of the Solicitor, Dallas, Texas

 For Complainant

Collin G. Warren, Esq., Travis W. Vance, Esq., Fisher & Phillips, LLP, Houston, Texas 

 For Respondent

Before: Administrative Law Judge Brian A. Duncan

DECISION AND ORDER

Procedural History

On May 15, 2016, Respondent’s employees were installing new antennas on a 

communications tower using a 275-ton mobile crane in Georgetown, Texas. An employee was 

on the ground holding the end of the crane’s hoist line, while the crane operator was lowering 

the boom, when it contacted a nearby electric line. The employee was seriously injured by the 

SECRETARY OF LABOR, 

 Complainant,

 v. 

TNT CRANE & RIGGING, INC., 

 Respondent.
13 

electrical shock, and hospitalized. Four days later, on May 19, 2016, OSHA assigned Compliance 

Safety and Health Officer (CSHO) Darren Beck to begin an investigation of the incident. (Tr. 59). 

As a result of his investigation, OSHA issued a Citation and Notification of Penalty to Respondent 

alleging two violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. 

(“the Act”). 

OSHA alleged a serious violation of 29 C.F.R. §1926.1407(b)(3) for failing to prevent the 

encroachment of power lines during crane disassembly; and a serious violation of 29 C.F.R. 

§1926.1407(d) for failing to maintain minimum approach distances from power lines during 

disassembly, with total proposed penalties of $24,942.00. Respondent timely contested the 

Citation, which brought the matter before the United States Occupational Safety and Health 

Review Commission (“Commission”) pursuant to Section 10(c) of the Act. 

A trial was conducted in Houston, Texas on December 20–21, 2017. Seven witnesses 

testified at trial: (1) CSHO Darren Beck; (2) Freddie Ray, a driver and rigger for Respondent; (3) 

Jeff Benson, a crane operator and former employee of Respondent; (4) Troy Pierce, Respondent’s 

Vice President of Health Safety and Environment; (5) Matt Gardiner, Respondent’s designated 

crane expert; (6) Jamie Arnold, Respondent’s Branch Manager of the Marshall, Texas yard; and 

(7) Jeff Bonner, one of Respondent’s safety managers. Both parties timely submitted post-trial 

briefs for the Court’s consideration. 

Jurisdiction & Stipulations

The parties stipulated the Commission has jurisdiction over this proceeding pursuant to 

Section 10(c) of the Act. (Tr. 18). The parties also stipulated that, at all times relevant to this 
14 

proceeding, Respondent was an employer engaged in a business and industry affecting interstate 

commerce within the meaning of Sections 3(3) and 3(5) of the Act, 29 U.S.C. §652(5). (Tr. 18–19). 

See Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005). 

Factual Background

On May 15, 2016, Respondent’s employees Jeff Benson and Mark Ryan were completing 

a week-long project to install new antennas on top of a communications tower in Georgetown, 

Texas. (Tr. 58, 313, 529). Mr. Benson, Respondent’s Crane Operator, was operating a Grove GMK 

5275 all-terrain 275-ton mobile crane to perform the work. (Tr. 320; Exs. C-16, C-17). About 9:00 

a.m. that day, employees [Redacted] and Freddie Ray, who were detailed from Respondent’s San 

Antonio office, arrived at the worksite to assist in disassembling the mobile crane once the job 

was completed. (Tr. 202–203, 254). 

Once finished, the crew needed to dismantle the crane and re-load it back on the semitruck trailer used to transport it. (Tr. 96, 254). Before starting that process, the crew conducted 

a job safety analysis (JSA) and discussed a plan for lowering and disassembling the boom of the 

crane, including the need to avoid the nearby power lines. (Tr. 203–206; Ex. R-4). Though 

[Redacted] and Mr. Ray expressed reservations about the plan, Mr. Benson informed them he 

had assembled the crane in the exact location where he proposed disassembling the crane, and 

the plan included a buffer zone of 20 feet from the power line.8 (Tr. 214). 

8

. Because the voltage of the power line was 14,400 volts, the required minimum distance was 10 feet per Table A 

of 29 C.F.R. §1926.1408. Respondent’s employees testified that they aimed for a larger buffer area. (Tr. 259). 
15 

On this particular crane model, the operator’s cabin sits on a turntable on the truck, which 

allows it to rotate left and right. (Tr. 207, 320). Affixed to the turntable is a telescoping boom,

which extends and retracts by way of a hydraulic cylinder. (Tr. 207; Ex. C-17). According to Mr. 

Ray, the boom remains permanently affixed to the crane. (Tr. 207). There was also a jib on the 

crane, which consisted of extension sections that attach to the end of the boom for more reach. 

(Tr. 208; Ex. C-16). In contrast to the boom, the jib is not permanently affixed to the crane. 

Instead, the jib sections are connected by a series of pins during the assembly process, and then 

removed during the disassembly process. (Tr. 207; Ex. C-16). The jib pins are substantial pieces 

of steel bar which are inserted and removed with a hammer. (Tr. 207). 

The disassembly plan called for Mr. Benson to first reposition the crane near the semitruck trailer; then to lower the boom while [Redacted], the spotter, removed the block from the 

beckett on the end of the hoist line. (Tr. 88). The block is the end mechanism on a crane, where 

rigging is attached to pick up whatever items the crane is lifting. (Tr. 199, 328; Exs. C-16 (TNT 

102), C-17 (DOL 187). The beckett is a metal connection device at the end of the hoist line, where 

the block is connected. (Tr. 209, 328). Then, while [Redacted] physically held the beckett to keep 

the hoist line taught, it was to be retracted onto the coil.

9 (Tr. 209, 211, 315). From operators to 

the expert, all of Respondent’s witnesses testified that simply lowering the boom and 

disconnecting the block, are normal operations that can occur multiple times over the course of 

a single day. (Tr. 224, 264, 536).

9

. Mr. Ray testified that removing the block was an unnecessary step in the process that actually increased the 

likelihood of an accident. The block in question weighed nearly 500 pounds, which would have maintained adequate 

tension on the hoist line while it was retracted, eliminating the need for [Redacted] to hold the line. (Tr. 231–233). 
16 

After the block was removed and the hoist line retracted, the plan was to further lower

the boom, use a separate helper crane to begin taking off sections of the jib, and place them on 

the trailer. (Tr. 227, 262, 315, 486-487, 553; Ex. R-4). Disassembly of this crane is a progressive 

process, which involves raising/lowering the boom after each successive section of the jib had 

been removed and set on the trailer. (Tr. 207–208). This description of the process was echoed 

by Matthew Gardiner, Respondent’s expert. (Tr. 538–539). Mr. Gardiner, Mr. Pierce, and Mr. 

Ray testified at trial that the actual removal of the first section of jib is when crane “disassembly” 

actually begins. (Tr. 207-208, 467, 540-541). 

However, despite this disassembly plan, the crew never progressed past the removal of 

the block and the beginning of the retraction of the hoist line. Neither the boom or jib was ever 

laid onto the trailer, no sections of jib were removed, and no jib section pins were knocked out. 

(Tr. 261-262). As the crane operator was lowering the boom and retracting the hoist line, it 

contacted a nearby power line, sending 14,000 volts of electricity through the hoist line to 

[Redacted]. (Tr. 108, 211–212). Mr. Ray, who was in the cab of the semi-truck awaiting 

instructions from Mr. Ryan, quickly ran over to [Redacted]’s location. (Tr. 211-212). After 

emergency responders arrived and had the original crew move the crane and other equipment 

for access purposes, the entire crew was sent home. (Tr. 268). Respondent had a different crew 

come to the site a day later to disassemble the crane and remove it from the property. (Tr. 381).

[Redacted] experienced a severe electricalshock, serious injuries, and hospitalization. (Tr. 

213, 379–80). The crane operator was not injured. Respondent reported the accident and 

employee hospitalization to OSHA within 24 hours, which prompted the investigation. 
17 

By the time CSHO Beck arrived at the worksite, the equipment and parties involved in the 

incident were no longer there. (Tr. 57). He also testified that he was unable to enter the locked 

property. (Tr. 138). Therefore, instead of performing an inspection at the location of the 

accident, CSHO Beck traveled to Respondent’s Houston, TX office, to interview witnesses; and to 

Respondent’s Marshall, TX yard, where the crane was being stored. (Tr. 57). The Court notes that 

this was CSHO Beck’s first crane accident inspection. (Tr. 54). 

When CSHO Beck spoke with members of the crew, they apparently used phrases like 

“began to disassemble” and “started breaking down the crane,” which led him to conclude they 

were engaged in crane disassembly at the time of the accident. (Tr. 88-94). CSHO Benson’s 

conclusions were wholly reliant upon witness interviews. He did not actually know whether the 

crane was fully assembled, partially disassembled, or completely disassembled at the time of the 

accident. (Tr. 133). When asked during the trial how he knew the crew was actually 

disassembling the crane at the time of the accident, CSHO Beck testified that “...whenever you 

start getting close to power lines, that’s when the disassembly starts to occur. If they weren’t 

disassembling the crane, then what else were they doing?” (Tr. 153). 

The facts presented at trial, however, clearly established that disassembly of the crane 

was about to begin, but had not actually started. To reiterate, neither the boom or jib had been 

set on the trailer, the crane boom and jib were still suspended and under tension, none of the 

sections of jib had been removed, and none of the pins connecting each jib section had been 

knocked out. The crane was fully intact and operational, except for the removal of the block at 

the end of the hoist line. (Tr. 264).
18 

In additional to interview statements, CSHO Beck took photos of a not-to-scale model of 

the worksite prepared by Mr. Ray and a member of Respondent’s safety team, and took 

photographs of the crane as it set in the Marshall, TX yard. (Tr. 95, 243-44; Ex. C-21). None of the 

photographs entered into the record accurately reflect the condition, configuration, or position 

of the crane at the time of the accident. (Exs. C-16, C-17). Based on his investigation, CSHO Beck 

concluded that Respondent failed to comply with two regulatory requirements for crane 

disassembly, and OSHA issued the two violations at issue in this case. 

Discussion

To establish a violation of an OSHA standard, Complainant must prove, by a 

preponderance of the evidence, that: (1) the cited standard applied to the facts; (2) the employer 

failed to comply with the terms of the cited standard; (3) employees were exposed or had access 

to the hazard covered by the standard, and (4) the employer had actual or constructive 

knowledge of the violative condition (i.e., the employer knew, or with the exercise of reasonable 

diligence could have known). Atlantic Battery Co., 16 BNA OSHC 2131 (No. 90-1747, 1994). 

The first (and primary) issue here is whether the regulation cited in both alleged 

violations, 29 C.F.R. §1926.1407, applied to the work being performed by Respondent’s crew at 

the time of the accident. Even CSHO Beck acknowledged during the trial that if Respondent’s 

crew was not engaged in “disassembly,” then the Citations issued to Respondent were improper. 

(Tr. 134). The regulation cited here falls under the category of “Cranes and Derricks in 

Construction” and is entitled “Power line safety (up to 350 kV)—assembly and disassembly.” 29 

C.F.R. §1926.1407 et seq.
19 

Complainant argues that the process of crane “disassembly” began in this case when the 

block at the end of the hoist line was removed, and the boom began to be lowered. Compl’t Br.

at 11. According to Complainant, once the crew discussed the disassembly plan, then took their 

first physical steps toward accomplishing that plan, their actions were covered by the 

disassembly regulations. Respondent argues in opposition, that “disassembly” is not defined in 

the regulations, and that the simple act of lowering the boom and removing the block at the end 

of the hoist line is a common practice during normal operation of this and other cranes. (Tr. 264, 

466). For a Court to conclude that lowering the boom and removing/changing a block, 

constitutes crane disassembly would have far-reaching implications in the crane industry, and is 

contrary to the regulations. Respondent does not dispute that the crane was about to be

disassembled at the time of the accident, but that actual disassembly had not yet begun when 

the accident occurred.

Plain Language of “Assembly/Disassembly”

To determine a standard’s meaning, “the Commission must first look to its text and 

structure.” Seward Ship’s Drydock, Inc., 26 BNA OSHC 2303 (No. 09-1901, 2018) (citations 

omitted). If the language of the standard is unambiguous, then the plain meaning shall govern, 

irrespective of what definition the Secretary may propose. Id. According to the definition section 

of Subpart CC—Cranes and Derricks in Construction, “Assembly/Disassembly” means:

the assembly and/or disassembly of equipment covered under this standard. With 

regard to tower cranes, “erecting and climbing” replaces the term “assembly” and 

“dismantling” replaces the term disassembly.” Regardless of whether the crane is 

initially erected to its full height or is climbed in stages, the process of increasing 

the height of the crane is an erection process.
20 

29 C.F.R. §1926.1401. 

The first sentence in the definition is circular, and provides no clarification, because it uses 

the term “disassembly of equipment” to define the term “disassembly.” Even CSHO Beck agreed 

that “disassembly” is not clearly defined in the regulation. (Tr. 174). The next two sentences, 

however, provide some texture to its meaning. Specifically, the assembly process for tower 

cranes (not the type used here), involves “the process of increasing the height of the crane.” 

Conversely, logic dictates that decreasing the height of the crane would constitute disassembly. 

Unfortunately, with regard to the mobile crane used in this case, the definition does not explain 

how assembly/disassembly would differ from normal crane operation, during which the boom is 

raised and lowered repeatedly. 

Notwithstanding the vagueness of the term “assembly/disassembly” in the standard, 

OSHA created, in promulgating the regulations, an intentional dividing line between 

assembly/disassembly and normal crane operation. There are four other subsections of subpart 

CC that address the assembly/disassembly process. See id. §§1926.1403–.1406. The one 

standard specifically applicable to disassembly—§1926.1405—seems to further clarify that 

dividing line. In each subsection of §1926.1405, employers are admonished that “none of the 

pins” on various sections of the crane boom or pendants can be removed without adequate 

support or while the components are under tension. See id. §1926.1405(a)–(d). The previous 

section, after discussing the prerequisites for supervision and procedures, also highlights the 

removal of pins as part of the disassembly process. See id. §1926.1404(f). The language 
21 

contained in §1926.1405 seems to support Respondent’s argument that crane disassembly does 

not begin until the first connective pin is removed.

Regulatory History and Prior Interpretations

Because the plain language of the term “disassembly” is ambiguous in the cited standard, 

the Court will typically defer to Complainant’s interpretation so long as it is reasonable. See 

Martin v. OSHRC (CF&I Steel), 499 U.S. 144, 151 (1991) (citing Ehlert v. United States, 402 U.S. 99, 

105 (1971)). In other words, so long as the Court determines the interpretation “sensibly 

conforms to the purpose and wording of the regulation”, while also taking into account “whether 

the Secretary has consistently applied the interpretation embodied in the citation”, “the 

adequacy of notice to regulated parties”, and “the quality of the Secretary’s elaboration of 

pertinent policy considerations”, then Complainant’s interpretation will be upheld. See Seward 

Ships Drydock, Inc., supra; CF&I, supra). Complainant’s interpretation in this case, however, does 

not hold up to such scrutiny.

According to the Commission, if “a standard is susceptible to different interpretations, 

the Commission will consider statements made in the preamble to the standard as the most 

authoritative guide to the standard’s meaning.” Safeway Store No. 914, 16 BNA OSHC 1504, 1511 

(No. 91-373, 1993) (citing Am. Sterilizer Co., 15 BNA OSHC 1476, 1478 (No. 86-1179, 1992)). The 

preamble to the final rule, as well as other interpretive documents issued by Complainant, 

provide additional clarification regarding the issue of when assembly/disassembly operations 

begin and serve to further undermine Complainant’s position that removal of the block and 

lowering of the boom constituted disassembly. 
22 

At the beginning of the preamble’s discussion of the assembly/disassembly standards 

found at §1926.1403–.1406, the Secretary notes: 

Irrespective of whether the crane is initially erected to its full height, or is ‘jumped’ 

in stages, the process of increasing the height of the crane is an assembly/erection 

process. Sections 1926.1403 through 1926.1406 apply whenever the crane’s 

height is modified. To ensure that this intent is reflected in the standard, OSHA 

has added a sentence to the definition of “assembly/disassembly” in §1926.1401 

to this effect.

75 Fed. Reg. at 47936. Thus, as discussed earlier, the assembly/disassembly standards apply 

whenever the structural height of the crane is modified. This is further clarified in the preamble’s 

discussion of §1926.1405, which addresses the removal of pendant, boom, and jib pins and the 

hazards associated therewith. Id. at 47944. Specifically, the preamble notes that the standard 

applies whether a crane is being disassembled or whether the length of the boom/jib is being 

modified. Id. The language focuses on the addition or removal of structural components, i.e., 

pins, and provides a strong indication that mere removal of the block and lowering of the boom 

is insufficient for application of the cited standards. Merely extending or retracting the boom, 

would not constitute such a structural change. Indeed, Complainant’s own Compliance Directive

indicates that a mobile truck crane with a fully assembled boom, which only needs to be unfolded 

and pinned, does not even go through the assembly/disassembly process covered by the cited 

regulations. (Ex. R-34, p. 20 “Equipment Set-up...if the equipment operator merely unfolds and 

pins the boom of a fully assembled truck crane, it would be inappropriate to apply 

[assembly/disassembly] requirements.”). 

Case Law
23 

Both parties cite to a single case on crane disassembly, albeit with different 

interpretations. Though it is not a Commission decision, and was issued prior to the promulgation 

of these crane regulations, the Court finds it relevant and persuasive. In Steel Constructors, Inc., 

an ALJ was presented with an issue similar to the one at bar: whether, at the time of a crane 

accident, the employer was disassembling the crane. Steel Constructors, Inc., 8 BNA OSHC 2146 

(No. 78-3839, 1980) (ALJ Bobrick). In that case, the jib of a crane had been removed, and 

preparations were being made to dismantle the boom. Id. The boom was suspended 5-6 feet 

above the ground in a horizontal position. Id. Meanwhile, the motor was shut down and the 

controls were locked out to allow the crew to gather the necessary tools for dismantling the 

boom. Around that time, one employee unexpectedly began knocking out connection pins, 

which caused the boom to collapse. 

The employer was cited under the general duty clause for failing to securely block or 

support the boom during dismantling operations. The Steel Constructors ALJ ultimately 

concluded that the employer was not engaged in crane disassembly at the relevant time. In 

vacating the citation, the ALJ was persuaded by the fact that the crane controls were locked out; 

that it was in an elevated, suspended position; that preparations were still being made for the 

eventual dismantling of the boom; and because it was the regular practice of Respondent to 

dismantle the boom while it was resting securely on the ground. Id. 

Although certain facts are distinguishable, the Court agrees with Respondent’s 

interpretation and application of Steel Constructors. The record establishes that Respondent, in 

the present case, was merely in the process of setting up and positioning its equipment to begin
24 

the process of disassembling the crane. Respondent, in the present case, had not gone nearly so 

far down the road towards disassembly as the Steel Constructors employer, which had already 

removed the jib from the boom. Respondent, in the present case, simply had not begun to alter 

the structure of the crane. 

Conclusion 

The Court finds Complainant failed to establish the first prima facie element required to 

provide each of the alleged violations: applicability of the cited standard. Complainant’s 

interpretation of the standard, at least as expressed in this case through the Citation, 

unreasonably attempts to expand the scope of 29 C.F.R. §1926.1407; is inconsistent with the 

preamble and language of the crane disassembly regulation; and is inconsistent with 

Complainant’s own interpretive guidance. Since Complainant failed to establish that the cited 

regulation applied to the work being performed, the Court declines to address the other claims 

and defenses argued by the parties in their post-trial briefs.

Order

 Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED

that: 

1. Citation 1, Item 1 is VACATED; and

2. Citation 1, Item 2 is VACATED.

 /s/ 

Date: September 14, 2018 Judge Brian A. Duncan

Denver, Colorado U.S. Occupational Safety and Health Review Commission