[Federal Register Volume 75, Number 81 (Wednesday, April 28, 2010)]
[Notices]
[Pages 22424-22431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9785]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2009-0005]


Avalotis Corp.; Grant of a Permanent Variance

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

ACTION: Notice of a grant of a permanent variance.

-----------------------------------------------------------------------

SUMMARY: This notice announces the grant of a permanent variance to 
Avalotis Corp. (``the employer''). The permanent variance addresses the 
provision that regulates the tackle used for boatswain's chairs (29 CFR 
1926.452(o)(3)), as well as the provisions specified for personnel 
hoists by paragraphs (c)(1) through (c)(4), (c)(8), (c)(13), 
(c)(14)(i), and (c)(16) of 29 CFR 1926.552. As an alternative to 
complying with these provisions, the employer may instead comply with 
the conditions listed in this grant; these alternative conditions 
regulate hoisting systems used during inside or outside chimney 
construction to raise or lower workers in personnel cages, personnel 
platforms, and boatswain's chairs between the bottom landing of a 
chimney and an elevated work location. Accordingly, OSHA finds that 
these alternative conditions protect workers at least as well as the 
requirements

[[Page 22425]]

specified by 29 CFR 1926.452(o)(3) and 1926.552(c)(1) through (c)(4), 
(c)(8), (c)(13), (c)(14)(i), and (c)(16). This permanent variance 
applies in Federal OSHA enforcement jurisdictions, and in those States 
with OSHA-approved State Plans covering private-sector employers that 
have identical standards and agree to the terms of the variance.

DATES: The effective date of the permanent variance is April 28, 2010.

FOR FURTHER INFORMATION CONTACT: General information and press 
inquiries. For general information and press inquiries about this 
notice, contact Jennifer Ashley, Director, OSHA Office of 
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Washington, DC 20210; telephone: (202) 693-1999.
    Technical information. For technical information about this notice, 
contact MaryAnn 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.
    Copies of this Federal Register notice. Electronic copies of this 
notice are available at http://www.regulations.gov. Electronic copies 
of this notice, as well as news releases and other relevant 
information, are available on OSHA's Web site at http://www.osha.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    In the past 36 years, a number of chimney construction companies 
demonstrated to OSHA that several personnel hoist requirements (i.e., 
paragraphs (c)(1), (c)(2), (c)(3), (c)(4), (c)(8), (c)(13), (c)(14)(i), 
and (c)(16) of 29 CFR 1926.552), as well as the tackle requirements for 
boatswain's chairs (i.e., paragraph (o)(3) of 29 CFR 1926.452), result 
in access problems that pose a serious danger to workers. These 
companies requested permanent variances from these requirements, and 
proposed alternative equipment and procedures to protect workers while 
transporting them to and from their elevated worksites during chimney 
construction and repair. The Agency subsequently granted these 
companies permanent variances based on the proposed alternatives (see 
38 FR 8545 (April 3, 1973), 44 FR 51352 (August 31, 1979), 50 FR 20145 
(May 14, 1985), 50 FR 40627 (October 4, 1985), 52 FR 22552 (June 12, 
1987), 68 FR 52961 (September 8, 2003), 70 FR 72659 (December 6, 2005), 
71 FR 10557 (March 1, 2006), 72 FR 6002, 74 FR 34789 (July 17, 2009), 
and 74 FR 41742 (August 18, 2009)).\1\
---------------------------------------------------------------------------

    \1\ Zurn Industries, Inc. received two permanent variances from 
OSHA. The first variance, granted on May 14, 1985 (50 FR 20145), 
addressed the boatswain's-chair provision (then in paragraph (l)(5) 
of 29 CFR 1926.451), as well as the hoist-platform requirements of 
paragraphs (c)(1), (c)(2), (c)(3), and (c)(14)(i) of 29 CFR 
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 29 CFR 1926.552.
---------------------------------------------------------------------------

    Avalotis Corp. (``the employer'') applied for a permanent variance 
from the same personnel hoist- and boatswain's-chair requirements as 
the previous companies, and proposed as an alternative to these 
requirements the same equipment and procedures approved by OSHA in the 
earlier variances. The Agency published the employer's variance 
applications in the Federal Register on November 9, 2009 (74 FR 57704).
    The employer constructs, remodels, repairs, maintains, inspects, 
and demolishes tall chimneys made of reinforced concrete, brick, and 
steel. This work, which occurs throughout the United States, requires 
the employers to transport workers 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 necessitates frequent relocation of, and 
adjustments to, the work platforms and scaffolds so these structures 
will fit the decreasing circumference of the chimney as construction 
progresses upwards.
    To transport workers to various heights inside and outside a 
chimney, the employer proposed in its variance application to use a 
hoist system that lifts and lowers personnel-transport devices that 
include personnel cages, personnel platforms, or boatswain's chairs. In 
this regard, the employer proposed to use personnel cages, personnel 
platforms, or boatswain's chairs solely to transport workers with the 
tools and materials necessary to do their work, and not to transport 
only materials or tools on these devices in the absence of workers. In 
addition, the employer proposed to attach a hopper or concrete bucket 
to the hoist system to raise or lower material inside or outside a 
chimney.
    The employer also proposed to use a hoist engine, located and 
controlled outside the chimney, to power the hoist system. The proposed 
system consisted of a wire rope that: Spools off a winding drum (also 
known as the hoist drum or rope 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 a personnel- or material-
transport device. A cathead, which is a superstructure at the top of 
the system, supports the overhead sheaves. The overhead sheaves (and 
the vertical span of the hoist system) move upward with the system 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 employer proposed to 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.
    Additional conditions that the employer proposed to follow to 
improve worker safety included:
     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 
29 CFR 1926.552(c), including canopies and shields to protect workers 
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 29 CFR 1926.451(h)(1);
     Conducting tests and inspections of the hoist system as 
required by 29 CFR 1926.20(b)(2) and 1926.552(c)(15);
     Establishing an accident-prevention program that conforms 
to 29 CFR 1926.20(b)(3);
     Equipping workers who use a personnel cage, personnel 
platform, or boatswain's chair with, and ensuring that they use, 
personal fall arrest systems meeting the requirements of 29 CFR 
1926.502(d);
     Ensuring that workers using a personnel cage secure their 
personal fall arrest system to an attachment point located inside the 
cage, and that workers using personnel platforms or boatswain's chairs 
secure their personal fall arrest systems to a vertical lifeline;
     When using vertical lifelines, securing the lifelines to 
the top of the chimney and weighting the lifelines properly, or 
suitably affixing the lifelines to the bottom of the chimney, and 
ensuring that workers remain attached to their lifeline during the 
entire period of vertical transit;

[[Page 22426]]

     Providing instruction to each worker who uses a personnel 
platform or boatswain's chair regarding the shearing and struck-by 
hazards posed by the hoist system (e.g., work platforms, scaffolds), 
and the need to keep their limbs or other body parts clear of these 
hazards during hoisting operations;
     Providing the instruction on shearing and struck-by 
hazards before a worker uses one of these personnel-transport devices 
at the worksite; and periodically, and as necessary thereafter, 
including whenever the worker demonstrates: a lack of knowledge about 
the hazard or how to avoid it, a modification occurs to an existing 
shearing hazard, or a new shearing hazard develops at the worksite;
     Attaching a readily visible warning to each personnel 
platform and boatswain's chair notifying workers in a language they 
understand of potential shearing hazards during hoisting operations; 
for warnings located on personnel platforms, using the following (or 
equivalent) wording: ``Warning--To avoid serious injury, keep your 
hands, arms, feet, legs, and other parts of your body inside this 
platform while it is in motion''; and for boatswain's chairs, the 
warning uses the following (or equivalent) wording: ``Warning--To avoid 
serious injury, do not extend your hands, arms, feet, legs, or other 
parts of your body from the side or to the front of this chair while it 
is in motion; and
     Establishing a clearly designated exclusion zone around 
the hoist system's bottom landing and prohibiting any worker from 
entering the exclusion zone except to access a personnel cage, 
personnel platform, boatswain's chair, or material-transport device, 
and then only when the personnel- and material- transport device is at 
the bottom landing and not in operation.

II. Proposed Variance From 29 CFR 1926.452(o)(3)

    The employer noted in its variance request that it is necessary, on 
occasion, to use a boatswain's chair to transport workers to and from a 
bracket scaffold on the outside of an existing chimney during flue 
installation or repair work, or to transport them to and from an 
elevated scaffold located inside a chimney that has a tapering 
diameter. Paragraph (o)(3) of 29 CFR 1926.452, which regulates the 
tackle used to rig a boatswain's 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 a worker to 
safely control the ascent, descent, and stopping locations of the 
boatswain's chair. However, the employer stated in its variance request 
that, because of space limitations, the required tackle is difficult or 
impossible to operate on some chimneys that are over 200 feet tall. 
Therefore, as an alternative to complying with the tackle requirements 
specified by 29 CFR 1926.452(o)(3), the employer proposed to use the 
hoisting system described above in section I (``Background'') of this 
notice to raise or lower workers in a personnel cage to work locations 
both inside and outside a chimney. In addition, the employer proposed 
to use a personnel cage for this purpose to the extent that adequate 
space is available, and to use a personnel platform only when using a 
personnel cage was infeasible because of limited space. When available 
space makes using a personnel platform infeasible, the employer 
proposed to use a boatswain's chair to lift workers to work locations. 
The proposed variance limited use of the boatswain's chair to 
elevations above the last work location that the personnel platform can 
reach; under these conditions, the employer proposed to attach the 
boatswain's chair directly to the hoisting cable only when the 
structural arrangement precludes the safe use of the block and tackle 
required by 29 CFR 1926.452(o)(3).

III. Proposed Variance From 29 CFR 1926.552(c)

    Paragraph (c) of 29 CFR 1926.552 specifies the requirements for 
enclosed hoisting systems used to transport workers from one elevation 
to another. This paragraph ensures that employers transport workers 
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 workers 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 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 
workers 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 29 CFR 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 employer asserted in its 
proposed variance 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 
workers to a serious fall hazard. Additionally, the employer noted that 
the requirement to extend the enclosures 10 feet above the outside 
scaffolds often exposes the workers involved in building these 
extensions to dangerous wind conditions.
    Paragraph (c)(2) of 29 CFR 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. In the 
proposed variance, the employer contended that it is hazardous for 
workers to erect and brace a hoist tower inside a chimney, especially 
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 
29 CFR 1926.552(c)(1) and (c)(2), the employer proposed to use the 
hoist system discussed in section I (``Background'') of this notice to 
transport workers to and from work locations inside and outside 
chimneys. The employer claimed that this hoist system would make it 
unnecessary for it to comply with other provisions of 29 CFR 
1926.552(c) that specify requirements for hoist towers, including:
     (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
     (c)(16)--Construction specifications for personnel hoists, 
including materials assembly, structural integrity, and safety devices.

[[Page 22427]]

    The employer asserted that the proposed hoisting system protected 
workers at least as effectively as the personnel-hoist requirements of 
29 CFR 1926.552(c).

IV. Comments on the Proposed Variance

    OSHA received no comments on the proposed variance, including no 
comments from State-Plan States and Territories.

V. Multi-State Variance

    The variance applications stated that the employers perform chimney 
work in a number of geographic locations in the United States, some of 
which could include locations in one or more of the States and 
Territories that operate OSHA-approved safety and health programs under 
section 18 of the Occupational Safety and Health Act of 1970 (``State-
Plan States and Territories''; see 29 U.S.C. 651 et seq.). State-Plan 
States and Territories have primary enforcement responsibility over the 
work performed in those States and Territories. Under the provisions of 
29 CFR 1952.9 (``Variances affecting multi-state employers'') and 29 
CFR 1905.14(b)(3) (``Actions on applications''), a permanent variance 
granted by the Agency becomes effective in State-Plan States and 
Territories as an authoritative interpretation of the applicants' 
compliance obligation when: (1) The relevant standards are the same as 
the Federal OSHA standards from which the applicants are seeking the 
permanent variance; and (2) the State-Plan State or Territory does not 
object to the terms of the variance application.
    As noted in the previous section of this notice (section IV 
(``Comments on the Proposed Variance'')), OSHA received no comments on 
the variance application published in the Federal Register from any 
State-Plan State or Territory. However, several State-Plan States and 
Territories commented on earlier variance applications published in the 
Federal Register involving the same standards and submitted by other 
employers engaged in chimney construction and repair; OSHA is relying 
on these previous comments to determine the position of these State-
Plan States and Territories on the variance applications submitted by 
the present employers.\2\ The remaining paragraphs in this section 
provide a summary of the positions taken by the State-Plan States and 
Territories on the proposed alternative conditions.
---------------------------------------------------------------------------

    \2\ See 68 FR 52961 (Oak Park Chimney Corp. and American Boiler 
& Chimney Co.), 70 FR 72659 (International Chimney Corporation, 
Karrena International, LLC, and Matrix Service Industrial 
Contractors, Inc.), and 71 FR 10557 (Commonwealth Dynamics, Inc., 
Mid-Atlantic Boiler & Chimney, Inc., and R and P Industrial Chimney 
Co., Inc.).
---------------------------------------------------------------------------

    The following thirteen State-Plan States and one Territory have 
standards identical to the Federal OSHA standards and agreed to accept 
the alternative conditions: Alaska, Arizona, Indiana, Maryland, 
Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, 
Tennessee, Vermont, Virginia, and Wyoming. Of the remaining 13 States 
and Territories with OSHA-approved State plans, four of the States and 
one Territory (Connecticut, Illinois, New Jersey, New York, and the 
Virgin Islands) cover only public-sector workers and have no authority 
over the private-sector workers addressed in this variance application 
(i.e., that authority continues to reside with Federal OSHA).
    Four States (Kentucky, Michigan, South Carolina, and Utah) accepted 
the proposed alternative when specific additional requirements are 
fulfilled. Kentucky noted that, while it agreed with the terms of the 
variance, Kentucky statutory law requires affected employers to apply 
to the State for a State variance. Michigan agreed to the alternative 
conditions, but noted that its standards are not identical to the OSHA 
standards covered by the variance application. Therefore, Michigan 
cautioned that employers electing to use the variance in that State 
must comply with several provisions in the Michigan standards that are 
not addressed in the OSHA standard. South Carolina indicated that it 
would accept the alternative conditions, but noted that, for the grant 
of such a variance to be accepted by the South Carolina Commissioner of 
Labor, the employers must file the grant at the Commissioner's office 
in Columbia, South Carolina. Utah agreed to accept the Federal 
variance, but requires the employers to contact the Occupational Safety 
and Health Division, Labor Commission of Utah, regarding a procedural 
formality that must be completed before implementing the variance in 
that State.
    California, Hawaii, Iowa, and Washington either had different 
requirements in the affected standards or declined to accept the terms 
of the variance. Therefore, the employers must apply separately for a 
permanent variance from these four States.
    Based on the responses previously received from State-Plan States 
and Territories, the permanent Federal OSHA variance will be effective 
in the following thirteen State-Plan States and one Territory: Alaska, 
Arizona, Indiana, Maryland, Minnesota, Nevada, New Mexico, North 
Carolina, Oregon, Puerto Rico, Tennessee, Virginia, Vermont, and 
Wyoming; and in four additional states, Kentucky, Michigan, South 
Carolina, and Utah, when the employers meet specific additional 
requirements. However, this permanent variance does not apply in 
California, Hawaii, Iowa, and Washington State. As stated earlier, in 
the four States and one Territory (Connecticut, Illinois, New Jersey, 
New York, and the Virgin Islands) that have State-Plan programs that 
cover only public-sector workers, authority over the employers under 
the permanent variance continues to reside with Federal OSHA.

VI. Decision

    Avalotis Corp. seeks a permanent variance from the provision that 
regulates the tackle used for boatswain's chairs (29 CFR 
1926.452(o)(3)), as well as the provisions specified for personnel 
hoists by paragraphs (c)(1) through (c)(4), (c)(8), (c)(13), 
(c)(14)(i), and (c)(16) of 29 CFR 1926.552. Paragraph (o)(3) of 29 CFR 
1926.452 states that the tackle used for boatswain's chairs 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 provision is to allow a worker to safely 
control the ascent, descent, and stopping locations of the boatswain's 
chair. The proposed alternative to these requirements allows the 
employer to use a boatswain's chair to lift workers to work locations 
inside and outside a chimney when either a personnel cage or a 
personnel platform is infeasible. The employer proposed to attach the 
boatswain's chair to the hoisting system described as an alternative to 
paragraph (c) of 29 CFR 1926.552.
    Paragraph (c) of 29 CFR 1926.552 specifies the requirements for 
enclosed hoisting systems used to transport personnel from one 
elevation to another. This paragraph ensures that employers transport 
workers safely to and from elevated work platforms by mechanical means 
during construction work involving structures such as chimneys. In this 
regard, paragraph (c)(1) of 29 CFR 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 structure; these enclosures 
must extend the full height of the hoist tower. Under the requirements 
of paragraph (c)(2) of 29 CFR 1926.552, employers must enclose all four 
sides of a hoist tower located inside a chimney; these enclosures also 
must extend the full height of the tower.

[[Page 22428]]

    As an alternative to complying with the hoist-tower requirements of 
29 CFR 1926.552(c)(1) and (c)(2), the employer proposed to use a hoist 
system to transport workers to and from elevated work locations inside 
and outside chimneys. The proposed hoist system includes a hoist 
machine, cage, safety cables, and safety measures such as limit 
switches to prevent overrun of the cage at the top and bottom landings, 
and safety clamps that grip the safety cables if the main hoist line 
fails. To transport workers to and from elevated work locations, the 
employer proposed to attach a personnel cage to the hoist system. 
However, when the employer can demonstrate that adequate space is not 
available for the cage, it may use a personnel platform above the last 
worksite that the cage can reach. Further, when the employer shows that 
space limitations make it infeasible to use a work platform for 
transporting workers, it may use a boatswain's chair above the last 
worksite serviced by the personnel platform. Using the hoist system as 
an alternative to the hoist-tower requirements of 29 CFR 1926.552(c)(1) 
and (c)(2) eliminates the need to comply with the other provisions of 
29 CFR 1926.552(c) that specify requirements for hoist towers. 
Accordingly, the employer requested a permanent variance from these and 
related provisions (i.e., paragraphs (c)(3), (c)(4), (c)(8), (c)(13), 
(c)(14)(i), and (c)(16)).
    Under section 6(d) of the Occupational Safety and Health Act of 
1970 (29 U.S.C. 655), and based on the record discussed above, the 
Agency finds that when the employer complies with the conditions of the 
following order, the working conditions of the employer's workers will 
be at least as safe and healthful as if the employers complied with the 
working conditions specified by paragraph (o)(3) of 29 CFR 1926.452, 
and paragraphs (c)(1) through (c)(4), (c)(8), (c)(13), (c)(14)(i), and 
(c)(16) of 29 CFR 1926.552. This decision is applicable in all States 
under Federal OSHA enforcement jurisdiction, and in the 13 State-Plan 
States and one Territory with standards identical to the Federal 
standards (Alaska, Arizona, Indiana, Maryland, Minnesota, Nevada, New 
Mexico, North Carolina, Oregon, Puerto Rico, Tennessee, Virginia, 
Vermont, and Wyoming). In Kentucky, Michigan, South Carolina and Utah, 
the employers must meet additional conditions before this variance will 
apply in those States. This decision does not apply in California, 
Hawaii, Iowa, and Washington.

VII. Order

    OSHA issues this order authorizing Avalotis Corp. (``the 
employer'') to comply with the following conditions instead of 
complying with paragraph (o)(3) of 29 CFR 1926.452 and paragraphs 
(c)(1) through (c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16) of 29 
CFR 1926.552. This order applies in Federal OSHA enforcement 
jurisdictions, and in those States with OSHA-approved State plans that 
have identical standards and have agreed to the terms of the variance.

1. Scope of the Permanent Variance

    (a) This permanent variance applies only to tapered chimneys when 
the employer uses a hoist system during inside or outside chimney 
construction to raise or lower its workers between the bottom landing 
of a chimney and an elevated work location on the inside or outside 
surface of the chimney.
    (b) When using a hoist system as specified in this permanent 
variance, the employer must:
    (i) Use the personnel cages, personnel platforms, or boatswain's 
chairs raised and lowered by the hoist system solely to transport 
workers with the tools and materials necessary to do their work; and
    (ii) Attach a hopper or concrete bucket to the hoist system to 
raise and lower all other materials and tools inside or outside a 
chimney.
    (c) Except for the requirements specified by 29 CFR 1926.452 (o)(3) 
and 1926.552(c)(1) through (c)(4), (c)(8), (c)(13), (c)(14)(i), and 
(c)(16), the employer must 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 
Boatswain's Chair

    (a) Personnel platform. When the employer demonstrates that 
available space makes a personnel cage for transporting workers 
infeasible, it may replace the personnel cage with a personnel platform 
when it limits use of the personnel platform to elevations above the 
last work location that the personnel cage can reach.
    (b) Boatswain's chair. The employer must:
    (i) Before using a boatswain's chair, demonstrate that available 
space makes it infeasible to use a personnel platform for transporting 
workers;
    (ii) Limit use of a boatswain's chair to elevations above the last 
work location that the personnel platform can reach; and
    (iii) Use a boatswain's chair in accordance with block-and-tackle 
requirements specified by 29 CFR 1926.452(o)(3), unless the employer 
can demonstrate that the structural arrangement of the chimney 
precludes such use.

3. Qualified Competent Person

    (a) The employer must:
    (i) Provide a qualified competent person, as specified in 
paragraphs (f) and (m) of 29 CFR 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 workers.
    (b) The employer must 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 employer must designate the hoist machine as 
a portable personnel hoist.
    (b) Raising or lowering a transport. The employer must ensure that:
    (i) The hoist machine includes a base-mounted drum hoist designed 
to control line speed; and
    (ii) Whenever the employer raises or lowers a personnel or material 
hoist (e.g., a personnel cage, personnel platform, boatswain's 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 employer must power the hoist machine by an 
air, electric, hydraulic, or internal-combustion drive mechanism.
    (d) Constant-pressure control switch. The employer must:
    (i) Equip the hoist machine with a hand- or foot-operated constant-
pressure control switch (i.e., a ``deadman control

[[Page 22429]]

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 employer must:
    (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 employer must 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 employer must equip the hoist machine 
with a slack-rope switch to prevent rotation of the winding drum under 
slack-rope conditions.
    (h) Frame. The employer must 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 employer must secure hoist machines in position 
to prevent movement, shifting, or dislodgement.
    (j) Location. The employer must:
    (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\[deg]) and one and one-half degrees (1\1/2\[deg]) for smooth 
drums, and between one-half degree (\1/2\[deg]) and two degrees 
(2[deg]) for grooved drums, with the lead sheave centered on the 
drum.\3\
---------------------------------------------------------------------------

    \3\ This variance adopts the definition of, and specifications 
for, fleet angle from Cranes and Derricks, H. I. Shapiro, et al. 
(eds.); New York: McGraw-Hill; 3rd ed., 1999, page 592. 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 employer must:
    (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 employer must 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 employer must ensure that all electrical 
equipment is weatherproof.
    (n) Limit switches. The employer must equip the hoist system with 
limit switches and related equipment that automatically prevent 
overtravel of a personnel cage, personnel platform, boatswain's 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 employer must:
    (i) Ensure that only trained and experienced workers, 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 worker who uses a personnel cage for 
transportation.
    (b) Speed limitations. The employer must 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 workers;
    (ii) One hundred (100) feet (30.5 m) per minute when a personnel 
platform or boatswain's chair is being used to transport workers; or
    (iii) A line speed that is consistent with the design limitations 
of the system when only material is being hoisted.
    (c) Communication. The employer must:
    (i) Use a voice-mediated intercommunication system to maintain 
communication between the hoist operator and the workers located in or 
on a moving personnel cage, personnel platform, or boatswain's 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 employer must 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 employer must maintain a safety factor of at 
least eight (8) times the safe workload throughout the entire length of 
hoist rope.
    (c) Size. The employer must use a hoist rope that is at least one-
half (\1/2\) inch (1.3 cm) in diameter.
    (d) Inspection, removal, and replacement. The employer must:
    (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 29 CFR 1926.552(a)(3) occurs.
    (e) Attachments. The employer must attach the rope to a personnel 
cage, personnel platform, or boatswain's chair with a keyed-screwpin 
shackle or positive-locking link.
    (f) Wire-rope fastenings. When the employer uses clip fastenings 
(e.g., U-bolt wire-rope clips) with wire ropes, it must:
    (i) Use Table H-20 of 29 CFR 1926.251 to determine the number and 
spacing of clips;
    (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 employer must 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 direction as required by the 
direction of rope travel.
    (b) Directional change. The employer must 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 employer must 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 employer must use a cathead (i.e., ``overhead 
support'') that

[[Page 22430]]

consists of a wide-flange beam, or two (2) steel-channel sections 
securely bolted back-to-back to prevent spreading.
    (b) Installation. The employer must 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 employer must 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 employer must 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 employer must affix two (2) guide 
ropes by swivels to the cathead. The guide ropes must:
    (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 defects at all times.
    (b) Guide rope fastening and alignment tension. The employer must 
fasten one end of each guide rope securely to the overhead support, 
with appropriate tension applied at the foundation.
    (c) Height. The employer must rig the guide ropes along the entire 
height of the hoist-machine structure.

10. Personnel Cage

    (a) Construction. A personnel cage must be of steel-frame 
construction and capable of supporting a load that is four (4) times 
its maximum rated load capacity. The employer also must 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;
    (vi) Safe handholds (e.g., rope grips--but not rails or hard 
protrusions \4\) that accommodate each occupant; and
---------------------------------------------------------------------------

    \4\ To reduce impact hazards should workers lose their balance 
because of cage movement.
---------------------------------------------------------------------------

    (vii) Attachment points to which workers secure their personal fall 
protection systems.
    (b) Overhead weight. A personnel cage must 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 the footblock. In 
addition, the employer must:
    (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 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 employer must post the procedures for 
operating the personnel cage conspicuously at the hoist operator's 
station.
    (e) Capacity. The employer must:
    (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) Worker notification. The employer must post a sign in each 
personnel cage notifying workers 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 employer must:
    (i) Conduct static drop tests of each personnel cage that 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 Non-guided 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 workers 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 employer must:
    (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 employer must attach safety 
clamps to each personnel cage for gripping the guide ropes.
    (c) Operation. The safety clamps attached to the personnel cage 
must:
    (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 compression force'') for each hoist system.
    (d) Maintenance. The employer must keep the safety clamp assemblies 
clean and functional at all times.

12. Overhead Protection

    (a) The employer must install a canopy or shield over the top of 
the personnel cage that is made of steel plate at least three-
sixteenths (3/16) of an inch (4.763 mm) thick, or material of 
equivalent strength and impact resistance, to protect workers (i.e., 
both inside and outside the chimney) from material and debris that may 
fall from above.
    (b) The employer must ensure that the canopy or shield slopes to 
the outside of the personnel cage.\5\
---------------------------------------------------------------------------

    \5\ Paragraphs (a) and (b) were adapted from OSHA's Underground 
Construction standard (29 CFR 1926.800(t)(4)(iv)).
---------------------------------------------------------------------------

13. Emergency-Escape Device

    (a) Location. The employer must 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 employer must ensure that written 
instructions for operating the emergency-escape device are attached to 
the device.
    (c) Training. The employer must instruct each worker who uses a

[[Page 22431]]

personnel cage for transportation on how to operate the emergency-
escape device:
    (i) Before the worker uses a personnel cage for transportation; and
    (ii) Periodically, and as necessary, thereafter.

14. Personnel Platforms

    (a) Personnel platforms. When the employer elects to replace the 
personnel cage with a personnel platform in accordance with Condition 
2(a) of this variance, it must:
    (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 29 CFR 1926.451(a)(1).

15. Protecting Workers From Fall and Shearing Hazards

    (a) Fall hazards. The employer must:
    (i) Before workers use personnel cages, personnel platforms, or 
boatswain's chairs, equip the workers with, and ensure that they use, 
personal fall arrest systems that meet the requirements of 29 CFR 
1926.502(d);
    (ii) Ensure that workers using personnel cages secure their fall 
arrest systems to attachment points located inside the cage;
    (iii) Ensure that workers using personnel platforms and boatswain's 
chairs secure their personal fall arrest systems to a vertical 
lifeline; and
    (iv) When using vertical lifelines:
    (A) Secure the lifelines to the top of the chimney;
    (B) Weight the lifelines properly, or suitably affix the lifelines 
to the bottom of the chimney; and
    (C) Ensure that workers remain attached to their lifeline during 
the entire period of vertical transit.
    (b) Shearing hazards. The employer must:
    (i) Provide workers who use personnel platforms or boatswain's 
chairs with instruction on the shearing hazards posed by the hoist 
system (e.g., work platforms, scaffolds), and the need to keep their 
limbs or other body parts clear of these hazards during hoisting 
operations;
    (ii) Provide the instruction on shearing and struck-by hazards:
    (A) Before a worker uses a personnel platform or boatswain's chair 
at the worksite; and
    (B) Periodically, and as necessary, thereafter, including whenever 
a worker demonstrates a lack of knowledge about the hazards or how to 
avoid the hazards, a modification occurs to an existing shearing or 
struck-by hazard, or a new shearing or struck-by hazard develops at the 
worksite; and
    (iii) Attach a readily visible warning to each personnel platform 
and boatswain's chair notifying workers in a language they understand 
of potential shearing hazards they may encounter during hoisting 
operations, and that uses the following (or equivalent) wording:
    (A) For personnel platforms: ``Warning--To avoid serious injury, 
keep your hands, arms, feet, legs, and other parts of your body inside 
this platform while it is in motion''; and
    (B) For boatswain's chairs: ``Warning--To avoid serious injury, do 
not extend your hands, arms, feet, legs, or other parts your body from 
the side or to the front of this chair while it is in motion.''

16. Exclusion Zone

    The employer must:
    (a) Establish a clearly designated exclusion zone around the bottom 
landing of the hoist system; and
    (b) Prohibit any worker from entering the exclusion zone except to 
access a personnel- or material-transport device, and then only when 
the device is at the bottom landing and not in operation (i.e., when 
the drive components of the hoist machine are disengaged and the 
braking mechanism is properly applied).

17. Inspections, Tests, and Accident Prevention

    (a) The employer must:
    (i) Conduct inspections of the hoist system as required by 29 CFR 
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 29 CFR 
1926.552(c)(15).
    (b) The employer must comply with the accident-prevention 
requirements of 29 CFR 1926.20(b)(3).

18. Welding

    (a) The employer must use only qualified welders to weld components 
of the hoisting system.
    (b) The employer must 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 1926, 
subpart J (``Welding and Cutting'').

19. OSHA Notification

    (a) At least 15 calendar days prior to commencing any chimney 
construction operation using the conditions specified herein, the 
employer must notify the OSHA Area Office nearest to the worksite, or 
the appropriate State Plan Office, of the operation, including the 
location of the operation and the date that the operation will 
commence.
    (b) The employer must inform OSHA national headquarters as soon as 
it has knowledge that it will:
    (i) Cease to do business; or
    (ii) Transfer the activities covered by this permanent variance to 
a successor company.

VIII. Authority and Signature

    David Michaels, PhD, MPH, 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. OSHA is issuing this notice 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. 5-2007 (72 FR 31160), and 
29 CFR part 1905.

    Signed at Washington, DC, on April 22, 2010.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2010-9785 Filed 4-27-10; 8:45 am]
BILLING CODE 4510-26-P