[Federal Register Volume 69, Number 153 (Tuesday, August 10, 2004)]
[Notices]
[Pages 48754-48760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18227]



[[Page 48753]]

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Part IV





Department of Labor





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Occupational Safety and Health Administration



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Alberici Mid-Atlantic, LLC, Commonwealth Dynamics, Inc., and R and P 
Industrial Chimney Co., Inc., Application for Permanent Variance and 
Interim Order, Grant of Interim Order, and Request for Comments; Notice

  Federal Register / Vol. 69, No. 153 / Tuesday, August 10, 2004 / 
Notices  

[[Page 48754]]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[V-04-1]


Alberici Mid-Atlantic, LLC, Commonwealth Dynamics, Inc., and R 
and P Industrial Chimney Co., Inc., Application for Permanent Variance 
and Interim Order, Grant of Interim Order, and Request for Comments

AGENCY: Occupational Safety and Health Administration (OSHA), 
Department of Labor.

ACTION: Notice of an application for a permanent variance and interim 
order; grant of interim order; and request for comments.

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SUMMARY: Alberici Mid-Atlantic, LLC, Commonwealth Dynamics, Inc., and R 
and P Industrial Chimney Co., Inc. (``the applicants'') have applied 
for a permanent variance from the provisions of the OSHA standards that 
regulate the use of boatswains' chairs and hoist platforms, 
specifically paragraph (o)(3) of Sec.  1926.452 and paragraphs (c)(1) 
through (c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16) of Sec.  
1926.552. In addition, the applicants have requested an interim order 
based on the alternative conditions specified by the variance 
application. Since these conditions are the same as the conditions 
specified in the most recent permanent variance granted by the Agency 
for these boatswains'-chair and hoist-platform provisions, OSHA is 
granting the applicants' request for an interim order.

DATES: Submit comments and requests for a hearing by September 9, 2004.

ADDRESSES: Electronic. OSHA also permits electronic submission of 
comments (but not attachments) and hearing requests through its Web 
site at http://ecomments.osha.gov. If a commenter would like to submit 
additional materials to be associated with a comment that was submitted 
electronically, these materials should be sent, in triplicate hard 
copy, to the OSHA Docket Office at the above address. These materials 
must clearly identify the sender's name, date, subject, and docket 
number to enable the Agency to attach them to the appropriate comments.
    Facsimile. OSHA allows facsimile transmission of comments that are 
10 pages or fewer in length (including attachments), as well as hearing 
requests. Send these comments, identified with the docket number (i.e., 
V-04-1), to the OSHA Docket Office at (202) 693-1648; hard copies of 
these comments are not required. Commenters may submit attachments to 
their comments, such as studies and journal articles, in triplicate 
hard copy, to the OSHA Docket Office at the above address instead of 
transmitting facsimile copies of these materials. These materials must 
clearly identify the sender's name, date, subject, and docket number so 
that the Agency can attach them to the appropriate comments.
    Regular mail, express delivery, hand delivery, and messenger 
service. Submit three copies of comments (including attachments), as 
well as hearing requests, to the OSHA Docket Office, Docket No. V-04-1, 
Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200 
Constitution Ave., NW., Washington, DC 20210; telephone (202) 693-2350. 
Please contact the OSHA Docket Office at (202) 693-2350 for information 
about security procedures concerning the delivery of materials by 
express delivery, hand delivery, and messenger service. The hours of 
operation for the OSHA Docket Office and Department of Labor are 8:15 
a.m. to 4:45 p.m., e.t.

FOR FURTHER INFORMATION CONTACT: For information about this notice 
contact Ms. Maryann S. Garrahan, Director, Office of Technical Programs 
and Coordination Activities, Room N-3655, OSHA, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone 
(202) 693-2110; fax (202) 693-1644. For additional copies of this 
Federal Register notice, contact the Office of Publications, Room N-
3103, OSHA, U.S. Department of Labor, 200 Constitution Ave., NW., 
Washington, DC 20210 (telephone (202) 693-1888). Electronic copies of 
this Federal Register notice, as well as news releases and other 
relevant documents, are available at OSHA's Web site on the Internet at 
http://www.osha.gov/.
    Additional information about this variance application also is 
available from the following OSHA Regional Offices:
     U.S. Department of Labor, OSHA, JFK Federal Building, Room 
E340, Boston, MA 02203, telephone (617) 565-9860, and fax (617) 565-
9827.
     U.S. Department of Labor, OSHA, 201 Varick St., Room 670, 
New York, NY 10014, telephone (212) 337-2378, and fax (212) 337-2371.
     U.S. Department of Labor, OSHA, Curtis Building, Suite 740 
West, 170 South Independence Mall West, Philadelphia, PA 19106, 
telephone (215) 861-4900, and fax (215) 861-4904.
     U.S. Department of Labor, OSHA, Sam Nunn Atlanta Federal 
Center, 61 Forsyth St., SW., Room 6T50, Atlanta, GA 30303, telephone 
(404) 562-2300, and fax (404) 562-2295.
     U.S. Department of Labor, OSHA, 230 South Dearborn St., 
Room 3244, Chicago, IL 60604, telephone (312) 353-2220, and fax (312) 
353-7774.
     U.S. Department of Labor, OSHA, 525 Griffin St., Room 602, 
Dallas, TX 75202, telephone (214) 767-4736, and fax (214) 767-4693.
     U.S. Department of Labor, OSHA, City Center Square, 1100 
Main St., Suite 800, Kansas City, MO 64105, telephone (816) 426-5861, 
and fax (816) 426-2750.
     U.S. Department of Labor, OSHA, 1999 Broadway, Suite 1690, 
Denver, CO 80202-5716 (overnight), P.O. Box 46550, Denver, CO 80201-
6550 (mail), telephone (303) 844-1600, and fax (303) 844-1616.
     U.S. Department of Labor, OSHA, 71 Stevenson St., Room 
420, San Francisco, CA 94105, telephone (415) 975-4310, and fax (415) 
975-4319.
     U.S. Department of Labor, OSHA, 1111 Third Ave., Suite 
715, Seattle, WA 98101-3212, telephone (206) 553-5930, and fax (206) 
553-6499.

I. Notice of Application

    The following companies (``the applicants'') have submitted 
requests for a permanent variance under section 6(d) of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 655) and 29 CFR 
1905.11: (1) Alberici Mid-Atlantic, LLC, 4300 First Avenue, P.O. Box 9, 
Nitro, West Virginia 25143 (Ex. 1); (2) Commonwealth Dynamics, Inc., 95 
Court Street, Portsmouth, New Hampshire 03801 (Ex. 2); and (3) R and P 
Industrial Chimney Co., Inc., 244 Industry Parkway, Nicholasville, 
Kentucky 40356 (Ex. 3). The applicants seek a permanent variance from 
Sec.  1926.452(o)(3), which provides the tackle requirements for 
boatswains' chairs. The applicants also request a variance from 
paragraphs (c)(1) through (c)(4), (c)(8), (c)(13), (c)(14)(i), and 
(c)(16) of Sec.  1926.552. These latter paragraphs specify the 
following requirements:
     (c)(1)--Construction requirements for hoist towers outside 
a structure;
     (c)(2)--Construction requirements for hoist towers inside 
a structure;
     (c)(3)--Anchoring a hoist tower to a structure;
     (c)(4)--Hoistway doors or gates;
     (c)(8)--Electrically interlocking entrance doors or gates 
to the hoistway and cars;
     (c)(13)--Emergency stop switch located in the car;
     (c)(14)(i)--Using a minimum of two wire ropes for drum 
hoisting; and
     (c)(16)--Material and component requirements for 
construction of personnel hoists.

[[Page 48755]]

    The applicants contend that the permanent variance would provide 
their employees with a place of employment that is at least as safe and 
healthful as they would obtain under the existing provisions.
    The places of employment affected by this variance application are 
the present and future projects where the applicants construct 
chimneys, including states under federal jurisdiction, as well as 
states having safety and health plans approved by OSHA under section 18 
of the OSH Act (29 U.S.C. 667) and 29 CFR part 1952 (``Approved State 
Plans for Enforcement of State Standards'') (``State-plan states''). 
The applicants certify that they have provided each current employee 
that would be affected by the permanent variance, as well as employee 
representatives, with a copy of their variance requests, and also have 
posted a copy of these requests in a prominent location in their 
corporate offices and at each job site where they normally post 
notices. In addition, the applicants have informed employees and their 
representatives of their right to petition the Assistant Secretary of 
Labor for Occupational Safety and Health for a hearing on this variance 
application.

II. Multi-State Variance

    The applicants perform chimney work in a number of geographic 
locations in the United States; these locations are likely to include 
one or more locations in State-plan states. Consequently, any permanent 
variance granted as a result of this variance application would be 
subject to the requirements specified by 29 CFR 1952.9 (``Variances 
affecting multi-state employers'') and 29 CFR 1905.14(b)(3) (``Action 
on applications''). Under these regulations, a permanent variance 
granted by the Agency would become effective in State-plan states to 
the extent that the relevant state standards are the same as the 
federal OSHA standards from which the applicants are seeking the 
permanent variance, and the state has jurisdiction over both private- 
and public-sector employers and employees.\1\ The permanent variance 
granted previously to American Boiler and Chimney Co. and Oak Park 
Chimney Corp. became effective in nine State-plan states, including 
Alaska, Arizona, Kentucky, Maryland, New Mexico, North Carolina, 
Oregon, South Carolina (under specified conditions), and Tennessee (see 
68 FR 52964).
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    \1\ Three State-plan states (i.e., Connecticut, New Jersey, and 
New York) and one territory (i.e., Virgin Islands) do not have 
jurisdiction over private-sector employees (i.e., they limit their 
occupational safety and health jurisdiction to public-sector 
employees only). State-plan states and territories that have 
jurisdiction over both public- and private-sector employers and 
employees are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, 
Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North 
Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, 
Vermont, Virginia, Washington, and Wyoming.
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III. Supplementary Information

A. Overview

    The applicants construct, remodel, repair, maintain, inspect, and 
demolish tall chimneys made of reinforced concrete, brick, and steel. 
This work, which occurs throughout the United States, requires the 
applicants to transport employees and construction material to and from 
elevated work platforms and scaffolds located, respectively, inside and 
outside tapered chimneys. While tapering contributes to the stability 
of a chimney, it requires frequent relocation of, and adjustments to, 
the work platforms and scaffolds so that they will fit the decreasing 
circumference of the chimney as construction progresses upwards.
    To transport employees to various heights inside and outside a 
chimney, the applicants propose to use a hoist system that would lift 
and lower personnel-transport devices that include personnel cages, 
personnel platforms, or boatswains' chairs. The applicants would also 
attach a hopper or concrete bucket to the hoist system to raise or 
lower material inside or outside a chimney. The applicants would use 
personnel cages, personnel platforms, or boatswains' chairs solely to 
transport employees with the tools and materials necessary to do their 
work, and not to transport only materials or tools in the absence of 
employees.
    The applicants would use a hoist engine located and controlled 
outside the chimney, to power the hoist system. The system would also 
consist of a wire rope that: Spools off the hoist drum into the 
interior of the chimney; passes to a footblock that redirects the rope 
from the horizontal to the vertical planes; goes from the footblock 
through the overhead sheaves above the elevated platform; and finally 
drops to the bottom landing of the chimney where it connects to the 
personnel or material transport. The cathead, which is a superstructure 
at the top of a derrick, supports the overhead sheaves. The overhead 
sheaves (and the vertical span of the hoist system) move upward with 
the derrick as chimney construction progresses. Two guide cables, 
suspended from the cathead, eliminate swaying and rotation of the load. 
If the hoist rope breaks, safety clamps activate and grip the guide 
cables to prevent the load from falling. The applicants would use a 
headache ball, located on the hoist rope directly above the load, to 
counterbalance the rope's weight between the cathead sheaves and the 
footblock.
    The applicants would implement additional conditions to improve 
employee safety, including:
     Attaching the wire rope to the personnel cage using a 
keyed-screwpin shackle or positive-locking link;
     Adding limit switches to the hoist system to prevent 
overtravel by the personnel- or material-transport devices;
     Providing the safety factors and other precautions 
required for personnel hoists specified by the pertinent provisions of 
Sec.  1926.552(c), including canopies and shields to protect employees 
located in a personnel cage from material that may fall during hoisting 
and other overhead activities;
     Providing falling-object protection for scaffold platforms 
as specified by Sec.  1926.451(h)(1);
     Conducting tests and inspections of the hoist system as 
required by Sec. Sec.  1926.20(b)(2) and 1926.552(c)(15);
     Establishing an accident-prevention program that conforms 
to Sec.  1926.20(b)(3);
     Ensuring that employees who use a personnel platform or 
boatswain's chair wear full body harnesses and lanyard; and
     Securing the lifelines (used with a personnel platform or 
boatswain's chair) to the rigging at the top of the chimney and to a 
weight at the bottom of the chimney to maximum stability to the 
lifeline.

B. Previous Variances From Sec. Sec.  1926.452(o)(3) and 1926.552(c)

    Since 1973, ten chimney-construction companies have demonstrated to 
OSHA that several of the hoist-tower requirements of Sec.  1926.552(c) 
present access problems that pose a serious danger to their employees. 
These companies have received permanent variances from these hoist-
tower and boatswains'-chair requirements, and they have used 
essentially the same alternate apparatus and procedures that the 
applicants are now proposing to use in this variance application. The 
Agency published the permanent variances for these companies at 38 FR 
8545 (April 3, 1973), 44 FR 51352 (August 31, 1979), 50 FR 40627 
(October 4, 1985), 52 FR 22552 (June 12, 1987), and 68 FR 52961 
(September 8, 2003) (see Exs. 4 to 8).\2\
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    \2\ Zurn Industries, Inc. received two permanent variances from 
OSHA. The first variance, granted on May 14, 1985 (50 FR 20145), 
addressed the boatswains'-chair provision (then in paragraph (l)(5) 
of Sec.  1926.451), as well as the hoist-platform requirements of 
paragraphs (c)(1), (c)(2), (c)(3), and (c)(14)(i) of Sec.  1926.552. 
The second variance, granted on June 12, 1987 (52 FR 22552), 
includes these same paragraphs, as well as paragraphs (c)(4), 
(c)(8), (c)(13), and (c)(16) of Sec.  1926.552.

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[[Page 48756]]

    In 1980, the Agency evaluated the alternative conditions specified 
in the permanent variances that it had granted to chimney-construction 
companies as of that date. In doing so, OSHA observed hoisting 
operations conducted by these companies at various construction sites. 
These evaluations found that, while the alternative conditions 
generally were safe, compliance with the conditions among the companies 
was uneven (see Exs. 9 and 10). Additionally, the National Chimney 
Construction Safety and Health Advisory Committee, an industry-
affiliated organization, conducted evaluations of the hoist systems 
that provided useful information regarding safety and efficacy of the 
alternative conditions (see, e.g., Ex. 11).
    The permanent variance granted most recently by OSHA to American 
Boiler and Chimney Co. and Oak Park Chimney Corp. (see 68 FR 52961; 
September 8, 2003) updated the permanent variances granted by the 
Agency in the 1970s and 1980s by clarifying the alternative conditions 
and citing the most recent consensus standards and other references. On 
the basis of this experience and knowledge, the Agency finds that the 
applicants' requests for a permanent variance are consistent with the 
permanent variances that OSHA has granted previously to other employers 
in the chimney-construction industry. Therefore, the Agency believes 
that the conditions specified in these variance applications will 
provide the employees of the applicants with at least the same level of 
safety that they would receive from Sec.  1926.452(o)(3) and paragraphs 
(c)(1) through (c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16) of 
Sec.  1926.552.

C. Requested Variance From Sec.  1926.452(o)(3)

    The applicants state that it is necessary, on occasion, to use a 
boatswains' chair to transport employees to and from a bracket scaffold 
on the outside of an existing chimney during flue installation or 
repair work, or to and from an elevated scaffold located inside a 
chimney that has a small or tapering diameter. Paragraph (o)(3) of 
Sec.  1926.452, which regulates the tackle used to rig a boatswains' 
chair, states that this tackle must ``consist of correct size ball 
bearings or bushed blocks containing safety hooks and properly `eye-
spliced' minimum five-eighth (5/8) inch diameter first-grade 
manila rope [or equivalent rope].''
    The primary purpose of this paragraph is to allow an employee to 
safely control the ascent, descent, and stopping locations of the 
boatswains' chair. However, the applicants note that the required 
tackle is difficult or impossible to operate on some chimneys that are 
over 200 feet tall because of space limitations. Therefore, as an 
alternative to complying with the tackle requirements specified by 
Sec.  1926.452(o)(3), the applicants propose to use the hoisting system 
described in paragraph III.A (``Overview'') of this notice, both inside 
and outside a chimney, to raise or lower employees in a personnel cage 
to work locations. The applicants would use a personnel cage for this 
purpose to the extent that adequate space is available; they would use 
a personnel platform whenever a personnel cage is infeasible because of 
limited space. However, when limited space also makes a personnel 
platform infeasible, the applicants would then use a boatswains' chair 
to lift employees to work locations. The applicants would limit use of 
the boatswains' chair to elevations above the highest work location 
that the personnel cage and personnel platform can reach; under these 
conditions, they would attach the boatswains' chair directly to the 
hoisting cable only when the structural arrangement precludes the safe 
use of the block and tackle required by Sec.  1926.452(o)(3).

D. Requested Variance From Sec.  1926.552(c)

    Paragraph (c) of Sec.  1926.552 specifies the requirements for 
enclosed hoisting systems used to transport personnel from one 
elevation to another. This paragraph ensures that employers transport 
employees safely to and from elevated work platforms by mechanical 
means during the construction, alteration, repair, maintenance, or 
demolition of structures such as chimneys. However, this standard does 
not provide specific safety requirements for hoisting personnel to and 
from elevated work platforms and scaffolds in tapered chimneys; the 
tapered design requires frequent relocation of, and adjustment to, the 
work platforms and scaffolds. The space in a small-diameter or tapered 
chimney is not large enough or configured so that it can accommodate an 
enclosed hoist tower. Moreover, using an enclosed hoist tower for 
outside operations exposes employees to additional fall hazards because 
they need to install extra bridging and bracing to support a walkway 
between the hoist tower and the tapered chimney.
    Paragraph (c)(1) of Sec.  1926.552 requires employers to enclose 
hoist towers located outside a chimney on the side or sides used for 
entrance to, and exit from, the chimney; these enclosures must extend 
the full height of the hoist tower. The applicants assert that it is 
impractical and hazardous to locate a hoist tower outside tapered 
chimneys because it becomes increasingly difficult, as a chimney rises, 
to erect, guy, and brace a hoist tower; under these conditions, access 
from the hoist tower to the chimney or to the movable scaffolds used in 
constructing the chimney exposes employees to a serious fall hazard. 
Additionally, the applicants note that the requirement to extend the 
enclosures 10 feet above the outside scaffolds often exposes the 
employees involved in building these extensions to dangerous wind 
conditions.
    Paragraph (c)(2) of Sec.  1926.552 requires that employers enclose 
all four sides of a hoist tower even when the tower is located inside a 
chimney; the enclosure must extend the full height of the tower. The 
applicants contend that it is hazardous for employees to erect and 
brace a hoist tower inside a chimney, especially small-diameter or 
tapered chimneys, or chimneys with sublevels, because these structures 
have limited space and cannot accommodate hoist towers; space 
limitations result from chimney design (e.g., tapering), as well as 
reinforced steel projecting into the chimney from formwork that is near 
the work location.
    As an alternative to complying with the hoist-tower requirements of 
Sec.  1926.552(c)(1) and (c)(2), the applicants propose to use the 
rope-guided hoist system proposed above in section III.A (``Overview'') 
of this application to transport employees to and from work locations 
inside and outside chimneys. Use of the proposed hoist system would 
eliminate the need for the applicants to comply with other provisions 
of Sec.  1926.552(c) that specify requirements for hoist towers. 
Therefore, they are requesting a permanent variance from several other 
closely-related provisions, as follows:
     (c)(3)--Anchoring the hoist tower to a structure;
     (c)(4)--Hoistway doors or gates;
     (c)(8)--Electrically interlocking entrance doors or gates 
that prevent hoist movement when the doors or gates are open;
     (c)(13)--Emergency stop switch located in the car;
     (c)(14)(i)--Using a minimum of two wire ropes for drum-
type hoisting; and

[[Page 48757]]

     (c)(16)--Construction specifications for personnel hoists, 
including materials, assembly, structural integrity, and safety 
devices.
    The applicants assert that the proposed hoisting system would 
protect their employees at least as effectively as the hoist-tower 
requirements of Sec.  1926.552(c).

IV. Grant of Interim Order

    In addition to requesting a permanent variance, the applicants also 
requested an interim order that would remain in effect until the Agency 
makes a decision on their application for a permanent variance. In 
doing so, the applicants acknowledge that during this period they will 
comply fully with the conditions of the interim order as an alternative 
to complying with the tackle requirements provided for boatswains' 
chairs by Sec.  1926.452(o)(3) and the requirements for personnel 
hoists specified by paragraphs (c)(1) through (c)(4), (c)(8), (c)(13), 
(c)(14)(i) and (c)(16) of Sec.  1926.552.
    Based on its previous experience with permanent variances from 
these provisions granted to other companies, OSHA believes that an 
interim order is justified in this case. As noted above in section 
III.A (``Previous Variances * * *''), the Agency has granted four 
permanent variances from these provisions to eight companies since 
1973. Over this period, the affected companies have used effectively 
the alternative conditions specified in the variances. Moreover, the 
conditions of the interim order requested by the applicants duplicate 
exactly the conditions approved in the permanent variance granted 
recently to American Boiler and Chimney Co. and Oak Park Chimney Corp. 
(see 68 FR 52961). In granting this permanent variance to American 
Boiler and Chimney Co. and Oak Park Chimney Corp., the Agency stated, 
``[W]hen the employers comply with the conditions of the following 
order, their employees will be exposed to working conditions that are 
at least as safe and healthful as they would be if the employers 
complied with paragraph (o)(3) of Sec.  1926.452, and paragraphs (c)(1) 
through (c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16) of Sec.  
1926.552.'' (See 68 FR 52967.)
    Having determined previously that the alternative conditions 
proposed by the applicants will protect employees at least as 
effectively as the requirements of paragraph (o)(3) of Sec.  1926.452 
and paragraphs (c)(1) through (c)(4), (c)(8), (c)(13), (c)(14)(i), and 
(c)(16) of Sec.  1926.552, OSHA has decided to grant an interim order 
to the applicants pursuant to the provisions of paragraph (c) of Sec.  
1905.11. Accordingly, in lieu of complying with paragraph (o)(3) of 
Sec.  1926.452 and paragraphs (c)(1) through (c)(4), (c)(8), (c)(13), 
(c)(14)(i), and (c)(16) of Sec.  1926.552, the applicants will: (1) 
Provide notice of this grant of interim order to the employees affected 
by the conditions of the interim order using the same means they used 
to inform these employees of their application for a permanent 
variance; and (2) comply with the specific conditions listed below in 
section V (``Conditions of the Interim Order * * *'') of this 
application for the period between the date of this Federal Register 
notice and the date the Agency publishes its final decision on the 
application in the Federal Register; the interim order will remain in 
effect during this period unless OSHA modifies or revokes it in 
accordance with the requirements of Sec.  1905.13.
    With regard to chimney-construction operations conducted in State-
plan states, the applicants are invited to submit a request to the 
appropriate occupational safety and health authorities in those states 
where such operations are planned or are ongoing to determine whether 
they will honor this interim order. (For a list of State-plan states, 
see footnote 1 above.)

V. Specific Conditions of the Interim Order and the Application for a 
Permanent Variance

    The following conditions apply to the interim order being granted 
by OSHA to Alberici Mid-Atlantic, LLC, Commonwealth Dynamic, Inc., and 
R and P Industrial Chimney Co., Inc. as part of their application for a 
permanent variance described in this Federal Register notice. In 
addition, these conditions specify the alternatives to the requirements 
of paragraph (o)(3) of Sec.  1926.452 and paragraphs (c)(1) through 
(c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16) of Sec.  1926.552 that 
the applicants are proposing in their application for a permanent 
variance. These conditions include: \3\
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    \3\ In these conditions, the verb ``must'' applies to the 
interim order, while the verb ``would'' pertains to the application 
for a permanent variance.
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1. Scope

    (a) The interim order/permanent variance applies/would apply only 
when the applicants use a rope-guided hoist system during inside or 
outside chimney construction to raise or lower their employees between 
the bottom landing of a chimney and an elevated work location on the 
inside or outside surface of the chimney.
    (b) Except for the requirements specified by Sec.  1926.452 (o)(3) 
and Sec.  1926.552(c)(1) through (c)(4), (c)(8), (c)(13), (c)(14)(i), 
and (c)(16), the applicants must/would comply fully with all other 
applicable provisions of 29 CFR parts 1910 and 1926.

2. Replacing a Personnel Cage With a Personnel Platform or a 
Boatswains' Chair

    (a) Personnel platform. When the applicants demonstrate that 
available space makes a personnel cage for transporting employees 
infeasible, they may replace the personnel cage with a personnel 
platform when they limit use of the personnel platform to elevations 
above the last work location that the personnel cage can reach.
    (b) Boatswains' chair. When the applicants demonstrate that 
available space makes a personnel platform for transporting employees 
infeasible, they may:
    (i) Replace the personnel platform with a boatswains' chair when 
they limit use of the boatswains' chair to elevations that are above 
the highest work location that the personnel platform can reach; and
    (ii) When doing so, they must/would attach the boatswains' chair 
directly to the hoisting cable only when the structural arrangement 
precludes the safe use of the block and tackle required by Sec.  
1926.452(o)(3).

3. Qualified Competent Person

    (a) The applicants must/would:
    (i) Provide a qualified competent person, as specified in 
paragraphs (f) and (m) of Sec.  1926.32, who is responsible for 
ensuring that the design, maintenance, and inspection of the hoist 
system comply with the conditions of this grant and with the 
appropriate requirements of 29 CFR part 1926 (``Safety and Health 
Regulations for Construction''); and
    (ii) Ensure that the qualified competent person is present at 
ground level to assist in an emergency whenever the hoist system is 
raising or lowering employees.
    (b) The applicants must/would use a qualified competent person to 
design and maintain the cathead described under Condition 8 (``Cathead 
and Sheave'') below.

4. Hoist Machine

    (a) Type of hoist. The applicants must/would designate the hoist 
machine as a portable personnel hoist.
    (b) Raising or lowering a transport. The applicants must/would 
ensure that:

[[Page 48758]]

    (i) The hoist machine includes a base-mounted drum hoist designed 
to control line speed; and
    (ii) Whenever they raise or lower a personnel or material hoist 
(e.g., a personnel cage, personnel platform, boatswains' chair, hopper, 
concrete bucket) using the hoist system:
    (A) The drive components are engaged continuously when an empty or 
occupied transport is being lowered (i.e., no ``freewheeling'');
    (B) The drive system is interconnected, on a continuous basis, 
through a torque converter, mechanical coupling, or an equivalent 
coupling (e.g., electronic controller, fluid clutches, hydraulic 
drives).
    (C) The braking mechanism is applied automatically when the 
transmission is in the neutral position and a forward-reverse coupling 
or shifting transmission is being used; and
    (D) No belts are used between the power source and the winding 
drum.
    (c) Power source. The applicants must/would power the hoist machine 
by an air, electric, hydraulic, or internal-combustion drive mechanism.
    (d) Constant pressure control switch. The applicants must/would:
    (i) Equip the hoist machine with a hand-or foot-operated constant-
pressure control switch (i.e., a ``deadman control switch'') that stops 
the hoist immediately upon release; and
    (ii) Protect the control switch to prevent it from activating if 
the hoist machine is struck by a falling or moving object.
    (e) Line-speed indicator. The applicants must/would:
    (i) Equip the hoist machine with an operating line-speed indicator 
maintained in good working order; and
    (ii) Ensure that the line-speed indicator is in clear view of the 
hoist operator during hoisting operations.
    (f) Braking systems. The applicants must/would equip the hoist 
machine with two (2) independent braking systems (i.e., one automatic 
and one manual) located on the winding side of the clutch or couplings, 
with each braking system being capable of stopping and holding 150 
percent of the maximum rated load.
    (g) Slack-rope switch. The applicants must/would equip the hoist 
machine with a slack-rope switch to prevent rotation of the winding 
drum under slack-rope conditions.
    (h) Frame. The applicants must/would ensure that the frame of the 
hoist machine is a self-supporting, rigid, welded-steel structure, and 
that holding brackets for anchor lines and legs for anchor bolts are 
integral components of the frame.
    (i) Stability. The applicants must/would secure hoist machines in 
position to prevent movement, shifting, or dislodgement.
    (j) Location. The applicants must/would:
    (i) Locate the hoist machine far enough from the footblock to 
obtain the correct fleet angle for proper spooling of the cable on the 
drum; and
    (ii) Ensure that the fleet angle remains between one-half degree 
(\1/2\E) and one and one-half degrees (1\1/2\E) for smooth drums, and 
between one-half degree (\1/2\E) and two degrees (2E) for grooved 
drums, with the lead sheave centered on the drum.\4\
---------------------------------------------------------------------------

    \4\ Taken from the definition of, and specifications for, the 
term ``fleet angle'' from Cranes and Derricks, H. I. Shapiro, et al, 
(eds.); New York: McGraw-Hill, 2000. Accordingly, the fleet angle is 
``[t]he angle the rope leading onto a [winding] drum makes with the 
line perpendicular to the drum rotating axis when the lead rope is 
making a wrap against the flange.''
---------------------------------------------------------------------------

    (k) Drum and flange diameter. The applicants must/would:
    (i) Provide a winding drum for the hoist that is at least 30 times 
the diameter of the rope used for hoisting; and
    (ii) Ensure that the winding drum has a flange diameter that is at 
least one and one-half (1\1/2\) times the winding-drum diameter.
    (l) Spooling of the rope. The applicants must/would never spool the 
rope closer than two (2) inches (5.1 cm) from the outer edge of the 
winding-drum flange.
    (m) Electrical system. The applicants must/would ensure that all 
electrical equipment is weatherproof.
    (n) Limit switches. The applicants must/would equip the hoist 
system with limit switches and related equipment that automatically 
prevent overtravel of a personnel cage, personnel platform, boatswains' 
chair, or material-transport device at the top of the supporting 
structure and at the bottom of the hoistway or lowest landing level.

5. Methods of Operation

    (a) Employee qualifications and training. The applicants must/
would:
    (i) Ensure that only trained and experienced employees, who are 
knowledgeable of hoist-system operations, control the hoist machine; 
and
    (ii) Provide instruction, periodically and as necessary, on how to 
operate the hoist system, to each employee who uses a personnel cage 
for transportation.
    (b) Speed limitations. The applicants must/would not operate the 
hoist at a speed in excess of:
    (i) Two hundred and fifty (250) feet (76.9 m) per minute when a 
personnel cage is being used to transport employees;
    (ii) One hundred (100) feet (30.5 m) per minute when a personnel 
platform or boatswains' chair is being used to transport employees; or
    (iii) A line speed that is consistent with the design limitations 
of the system when only material is being hoisted.
    (c) Communication. The applicants must/would:
    (i) Use a voice-mediated intercommunication system to maintain 
communication between the hoist operator and the employees located in 
or on a moving personnel cage, personnel platform, or boatswains' 
chair;
    (ii) Stop hoisting if, for any reason, the communication system 
fails to operate effectively; and
    (iii) Resume hoisting only when the site superintendent determines 
that it is safe to do so.

6. Hoist Rope

    (a) Grade. The applicants must/would use a wire rope for the hoist 
system (i.e., ``hoist rope'') that consists of extra-improved plow 
steel, an equivalent grade of non-rotating rope, or a regular lay rope 
with a suitable swivel mechanism.
    (b) Safety factor. The applicants must/would maintain a safety 
factor of at least eight (8) times the safe workload throughout the 
entire length of hoist rope.
    (c) Size. The applicants must/would use a hoist rope that is at 
least one-half (\1/2\) inch (1.3 cm) in diameter.
    (d) Inspection, removal, and replacement. The applicants must/
would:
    (i) Thoroughly inspect the hoist rope before the start of each job 
and on completing a new setup;
    (ii) Maintain the proper diameter-to-diameter ratios between the 
hoist rope and the footblock and the sheave by inspecting the wire rope 
regularly (see Conditions 7(c) and 8(d) below); and
    (iii) Remove and replace the wire rope with new wire rope when any 
of the conditions specified by Sec.  1926.552(a)(3) occurs.
    (e) Attachments. The applicants must/would attach the rope to a 
personnel cage, personnel platform, or boatswains' chair with a keyed-
screwpin shackle or positive-locking link.
    (f) Wire-rope fastenings. When the applicants use clip fastenings 
(e.g., U-bolt wire-rope clips) with wire ropes, they must/would:
    (i) Use Table H-20 of Sec.  1926.251 to determine the number and 
spacing of clips;

[[Page 48759]]

    (ii) Use at least three (3) drop-forged clips at each fastening;
    (iii) Install the clips with the ``U'' of the clips on the dead end 
of the rope; and
    (iv) Space the clips so that the distance between them is six (6) 
times the diameter of the rope.

7. Footblock

    (a) Type of block. The applicants must/would use a footblock:
    (i) Consisting of construction-type blocks of solid single-piece 
bail with a safety factor that is at least four (4) times the safe 
workload, or an equivalent block with roller bearings;
    (ii) Designed for the applied loading, size, and type of wire rope 
used for hoisting;
    (iii) Designed with a guard that contains the wire rope within the 
sheave groove;
    (iv) Bolted rigidly to the base; and
    (v) Designed and installed so that it turns the moving wire rope to 
and from the horizontal or vertical as required by the direction of 
rope travel.
    (b) Directional change. The applicants must/would ensure that the 
angle of change in the hoist rope from the horizontal to the vertical 
direction at the footblock is approximately 90[deg].
    (c) Diameter. The applicants must/would ensure that the line 
diameter of the footblock is at least 24 times the diameter of the 
hoist rope.

8. Cathead and Sheave

    (a) Support. The applicants must/would use a cathead (i.e., 
``overhead support'') that consists of a wide-flange beam or two (2) 
steel-channel sections securely bolted back-to-back to prevent 
spreading.
    (b) Installation. The applicants must/would ensure that:
    (i) All sheaves revolve on shafts that rotate on bearings; and
    (ii) The bearings are mounted securely to maintain the proper 
bearing position at all times.
    (c) Rope guides. The applicants must/would provide each sheave with 
appropriate rope guides to prevent the hoist rope from leaving the 
sheave grooves when the rope vibrates or swings abnormally.
    (d) Diameter. The applicants must/would use a sheave with a 
diameter that is at least 24 times the diameter of the hoist rope.

9. Guide Ropes

    (a) Number and construction. The applicants must/would affix two 
(2) guide ropes by swivels to the cathead. The guide ropes must/would:
    (i) Consist of steel safety cables not less than one-half (\1/2\) 
inch (1.3 cm) in diameter; and
    (ii) Be free of damage or defect at all times.
    (b) Guide rope fastening and alignment tension. The applicants 
must/would fasten one end of each guide rope securely to the overhead 
support, with appropriate tension applied at the foundation.
    (c) Height. The applicants must/would rig the guide ropes along the 
entire height of the hoist-machine structure.

10. Personnel Cage

    (a) Construction. A personnel cage must/would be of steel-frame 
construction and capable of supporting a load that is four (4) times 
its maximum rated load capacity. The applicants also must/would ensure 
that the personnel cage has:
    (i) A top and sides that are permanently enclosed (except for the 
entrance and exit);
    (ii) A floor securely fastened in place;
    (iii) Walls that consist of 14-gauge, one-half (\1/2\) inch (1.3 
cm) expanded metal mesh, or an equivalent material;
    (iv) Walls that cover the full height of the personnel cage between 
the floor and the overhead covering;
    (v) A sloped roof constructed of one-eighth (\1/8\) inch (0.3 cm) 
aluminum, or an equivalent material; and
    (vi) Safe handholds (e.g., rope grips--but not rails or hard 
protrusions \5\) that accommodate each occupant.
---------------------------------------------------------------------------

    \5\ To reduce impact hazards should employees lose their balance 
because of cage movement.
---------------------------------------------------------------------------

    (b) Overhead weight. A personnel cage must/would have an overhead 
weight (e.g., a headache ball of appropriate weight) to compensate for 
the weight of the hoist rope between the cathead and footblock. In 
addition, the applicants must/would:
    (i) Ensure that the overhead weight is capable of preventing line 
run; and
    (ii) Use a means to restrain the movement of the overhead weight so 
that the weight does not interfere with safe personnel hoisting.
    (c) Gate. The personnel cage must/would have a gate that:
    (i) Guards the full height of the entrance opening; and
    (ii) Has a functioning mechanical lock that prevents accidental 
opening.
    (d) Operating procedures. The applicants must/would post the 
procedures for operating the personnel cage conspicuously at the hoist 
operator's station.
    (e) Capacity. The applicants must/would:
    (i) Hoist no more than four (4) occupants in the cage at any one 
time; and
    (ii) Ensure that the rated load capacity of the cage is at least 
250 pounds (113.4 kg) for each occupant so hoisted.
    (f) Employee notification. The applicants must/would post a sign in 
each personnel cage notifying employees of the following conditions:
    (i) The standard rated load, as determined by the initial static 
drop test specified by Condition 10(g) (``Static drop tests'') below; 
and
    (ii) The reduced rated load for the specific job.
    (g) Static drop tests. The applicants must/would:
    (i) Conduct static drop tests of each personnel cage, and these 
tests must/would comply with the definition of ``static drop test'' 
specified by section 3 (``Definitions'') and the static drop-test 
procedures provided in section 13 (``Inspections and Tests'') of 
American National Standards Institute (ANSI) standard A10.22-1990 
(R1998) (``American National Standard for Rope-Guided and Nonguided 
Worker's Hoists--Safety Requirements'');
    (ii) Perform the initial static drop test at 125 percent of the 
maximum rated load of the personnel cage, and subsequent drop tests at 
no less than 100 percent of its maximum rated load; and
    (iii) Use a personnel cage for raising or lowering employees only 
when no damage occurred to the components of the cage as a result of 
the static drop tests.

11. Safety Clamps

    (a) Fit to the guide ropes. The applicants must/would:
    (i) Fit appropriately designed and constructed safety clamps to the 
guide ropes; and
    (ii) Ensure that the safety clamps do not damage the guide ropes 
when in use.
    (b) Attach to the personnel cage. The applicants must/would attach 
safety clamps to each personnel cage for gripping the guide ropes.
    (c) Operation. The safety clamps attached to the personnel cage 
must/would:
    (i) Operate on the ``broken rope principle'' defined in section 3 
(``Definitions'') of ANSI standard A10.22-1990 (R1998);
    (ii) Be capable of stopping and holding a personnel cage that is 
carrying 100 percent of its maximum rated load and traveling at its 
maximum allowable speed if the hoist rope breaks at the footblock; and
    (iii) Use a pre-determined and pre-set clamping force (i.e., the 
``spring

[[Page 48760]]

compression force'') for each hoist system.
    (d) Maintenance. The applicants must/would keep the safety-clamp 
assemblies clean and functional at all times.

12. Overhead Protection

    (a) The applicants must/would install a canopy or shield over the 
top of the personnel cage that is made of steel plate at least three-
sixteenth (3/16) of an inch (4.763 mm) thick, or material of equivalent 
strength and impact resistance, to protect employees (i.e., both inside 
and outside the chimney) from material and debris that may fall from 
above.
    (b) The applicants must/would ensure that the canopy or shield 
slopes to the outside of the personnel cage.\6\
---------------------------------------------------------------------------

    \6\ Paragraphs (a) and (b) have been adapted from the personnel-
cage provisions of OSHA's Underground Construction Standard (Sec.  
1926.800(t)(4)(iv)).
---------------------------------------------------------------------------

13. Emergency-Escape Device

    (a) Location. The applicants must/would provide an emergency-escape 
device in at least one of the following locations:
    (i) In the personnel cage, provided that the device is long enough 
to reach the bottom landing from the highest possible escape point; or
    (ii) At the bottom landing, provided that a means is available in 
the personnel cage for the occupants to raise the device to the highest 
possible escape point.
    (b) Operating instructions. The applicants must/would ensure that 
written instructions for operating the emergency-escape device are 
attached to the device.
    (c) Training. The applicants must/would instruct each employee who 
uses a personnel cage for transportation on how to operate the 
emergency-escape device:
    (i) Before the employee uses a personnel cage for transportation; 
and
    (ii) Periodically, and as necessary, thereafter.

14. Personnel Platforms and Boatswains' Chairs

    (a) Personnel platforms. When the applicants elect to replace the 
personnel cage with a personnel platform in accordance with Condition 
2(a) of this variance, they must/would:
    (i) Ensure that an enclosure surrounds the platform, and that this 
enclosure is at least 42 inches (106.7 cm) above the platform's floor;
    (ii) Provide overhead protection when an overhead hazard is, or 
could be, present; and
    (iii) Comply with the applicable scaffolding strength requirements 
specified by Sec.  1926.451(a)(1).
    (b) Boatswains' chairs. When the applicants elect to replace the 
personnel platform with a boatswains' chair in accordance with 
Condition 2(b) (``Boatswains'' chair'') of this variance, they may 
attach the boatswains' chair directly to the hoisting cable only when 
they demonstrate that the spatial arrangement makes it infeasible to 
safely use the block and tackle required by Sec.  1926.452(o)(3).
    (c) Fall-protection equipment. Before employees use work platforms 
or boatswains' chairs, the applicants must/would equip the employees 
with, and ensure that they use, body harnesses and lifelines as 
specified by Sec.  1926.104 and the applicable requirements of Sec.  
1926.502(d).

15. Inspections, Tests, and Accident Prevention

    (a) The applicants must/would:
    (i) Conduct inspections of the hoist system as required by Sec.  
1926.20(b)(2);
    (ii) Ensure that a competent person conducts daily visual 
inspections of the hoist system; and
    (iii) Inspect and test the hoist system as specified by Sec.  
1926.552(c)(15).
    (b) The applicants must/would comply with the accident-prevention 
requirements of Sec.  1926.20(b)(3).

16. Welding

    (a) The applicants must/would use only qualified welders to weld 
components of the hoisting system.
    (b) The applicants must/would ensure that the qualified welders:
    (i) Are familiar with the weld grades, types, and materials 
specified in the design of the system; and
    (ii) Perform the welding tasks in accordance with 29 CFR part 1926, 
subpart J (``Welding and Cutting'').

VII. Authority and Signature

    John L. Henshaw, Assistant Secretary of Labor for Occupational 
Safety and Health, U.S. Department of Labor, 200 Constitution Ave., 
NW., Washington, DC directed the preparation of this notice. This 
notice is issued under the authority specified by section 6(d) of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 655), Secretary 
of Labor's Order No. 5-2002 (67 FR 65008), and 29 CFR part 1905.

    Signed in Washington, DC on July 28, 2004.
John L. Henshaw,
Assistant Secretary of Labor.
[FR Doc. 04-18227 Filed 8-9-04; 8:45 am]
BILLING CODE 4510-26-P