International Chimney Corporation, Karrena International, LLC, and Matrix Service Industrial Contractors, Inc., Application for Permanent Variance and Interim Order, Grant of Interim Order, and Request for Comments, 20773-20780 [05-7999]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 70, Number 76 (Thursday, April 21, 2005)]
[Notices]
[Pages 20773-20780]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-7999]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[V-04-2]


International Chimney Corporation, Karrena International, LLC, 
and Matrix Service Industrial Contractors, 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: International Chimney Corporation, Karrena International, LLC, 
and Matrix Service Industrial Contractors, Inc. (``the employers'') 
have applied for a permanent variance from the provisions of the OSHA 
standards that regulate boatswains' chairs and hoist towers, 
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 employers 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-tower provisions, OSHA is 
granting the applicants' request for interim orders.

DATES: Submit comments and requests for a hearing by May 23, 2005.

ADDRESSES: Electronic. OSHA also permits electronic submission of 
comments (but not attachments) and hearing requests through its website 
at https://ecomments.osha.gov. If a commenter would like to submit 
additional materials to supplement comments that were submitted 
electronically, these materials must be sent, in triplicate hard copy, 
to the OSHA Docket Office, Technical Data Center, Room N-2625, OSHA, 
U.S. Department of Labor, 200 Constitution Ave., NW., Washington, DC 
20210. These materials must clearly identify the sender's name, date, 
subject, and docket number (i.e., V-04-2) 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 and requests, identified with the docket 
number (i.e., V-04-2), to the OSHA Docket Office at (202) 693-1648; 
hard copies of these comments are not required. Instead of transmitting 
facsimile copies of additional material that supplement their comments 
(e.g., studies and journal articles), commenters may submit this 
material, in triplicate hard copy, to the OSHA Docket Office, Technical 
Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200 
Constitution Ave., NW., Washington, DC 20210. This material must 
clearly identify the sender's name, date, subject, and docket number 
(i.e., V-04-2) 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 and any additional material 
(e.g., studies and journal articles), 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., 
ET.
    Personal information. OSHA will make available to the public, 
without revision, all comments and other material submitted to the 
docket, including any personal information. Therefore, the Agency 
cautions commenters about submitting statements they do not want made 
available to the public, or submitting comments that contain personal 
information (either about themselves or others) such as social security 
numbers, birth dates, and medical data.

FOR FURTHER INFORMATION CONTACT: For information about this notice 
contact 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)

[[Page 20774]]

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 https://www.osha.gov/. Contact the 
OSHA Docket Office for information about docket materials not available 
through the OSHA Web site, and for assistance in using the Web site to 
locate docket submissions.
    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; fax: (617) 565-9827.
     U.S. Department of Labor, OSHA, 201Varick St., Room 670, 
New York, NY 10014; telephone: (212) 337-2378; 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; 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; fax: (404) 562-2295.
     U.S. Department of Labor, OSHA, 230 South Dearborn St., 
Room 3244, Chicago, IL 60604; telephone: (312) 353-2220; fax: (312) 
353-7774.
     U.S. Department of Labor, OSHA, 525 Griffin St., Room 602, 
Dallas, TX 75202; telephone: (214) 767-4736; 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; 
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; fax: (303) 844-1616.
     U.S. Department of Labor, OSHA, 71 Stevenson St., Room 
420, San Francisco, CA 94105; telephone: (415) 975-4310; fax: (415) 
975-4319.
     U.S. Department of Labor, OSHA, 1111 Third Ave., Suite 
715, Seattle, WA 98101-3212; telephone: (206) 553-5930; fax: (206) 553-
6499.

I. Notice of Application

    The following companies (``the employers'') 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) 
International Chimney Corporation, 55 South Long Street, Williamsville, 
New York 14221 (P.O. Box 260, Buffalo, NY 14231) (Ex. 1); (2) Karrena 
International, LLC, 57 South Long Street, Williamsville, New York 14221 
(P.O. Box 200, Buffalo, NY 14231) (Ex. 2); and Matrix Service 
Industrial Contractors, Inc., 6945 Crabb Road, Temperance, Michigan 
48182 (Ex. 3). The employers seek a permanent variance from Sec.  
1926.452(o)(3), which provides the tackle requirements for boatswains' 
chairs. The employers 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 that regulate hoist towers. 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. The employers 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 employers construct chimneys, 
located in states under federal jurisdiction, as well as State-plan 
states that have safety and health plans approved by OSHA under Section 
18 of the Occupational Safety and Health (OSH) Act (29 U.S.C. 667) and 
29 CFR part 1952 (``Approved State Plans for Enforcement of State 
Standards''). The employers certify that they have provided employee 
representatives of current employees who would be affected by the 
permanent variance with a copy of their variance requests. They also 
certify that they notified their employees of the variance requests by 
posting a summary of the application and specifying where they can 
examine a copy of the application at a prominent location or locations 
where they normally post notices to their employees (or instead of a 
summary, posting the application itself); and by other appropriate 
means. In addition, the employers 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 employers 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 employers are seeking the 
permanent variance, and the state has jurisdiction over both private- 
and public-sector employers and employees.\1\
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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 employers 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 
employers 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 employers propose to use a hoist system that would lift 
and lower personnel-transport devices that include personnel cages, 
personnel platforms, or

[[Page 20775]]

boatswains' chairs. The employers also would attach a hopper or 
concrete bucket to the hoist system to raise or lower material inside 
or outside a chimney. The employers 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 employers would use a hoist engine located and controlled 
outside the chimney, to power the hoist system. The system also would 
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 employers 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 employers 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 lanyards, and that the 
lanyards are attached to lifelines during the entire period of vertical 
transit; 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 provide maximum stability to the 
lifelines.

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

    Since 1973, ten chimney-construction companies 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 received permanent variances from these personnel-hoist 
and boatswains'-chair requirements, and they used essentially the same 
alternate apparatus and procedures that the employers 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), 
included these same paragraphs, as well as paragraphs (c)(4), 
(c)(8), (c)(13), and (c)(16) of Sec.  1926.552.
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    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 the 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 
employers' 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 employers 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 employers 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 employers 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 employers propose to use the hoisting system 
described in section 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 employers 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 employers then would use a boatswains' chair 
to lift employees to work locations. The employers would limit use of 
the boatswains' chair to elevations above the highest work location 
that the personnel cage and

[[Page 20776]]

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 the 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 employers 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 employers 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 
employers 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 employers 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 employers 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
     (c)(16)--Construction specifications for personnel hoists, 
including materials, assembly, structural integrity, and safety 
devices.
    The employers 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 employers also 
requested an interim order that would remain in effect until the Agency 
makes a decision on their application for a permanent variance. During 
this period, the employers must 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 hoist towers 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.B (``Previous Variances * * *''), the Agency has granted five 
permanent variances from these provisions to 10 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 employers 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 employers 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 employers pursuant to the provisions of Sec.  1905.11(c). 
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 employers 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 conditions listed below in section V 
(``Specific 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 employers 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.)

[[Page 20777]]

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 International Chimney Corporation, Karrena International, 
LLC, and Matrix Service Industrial Contractors, 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 employers 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 employers 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 employers 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 employers 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 employers 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 employers 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 employers 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 employers must/would designate the hoist 
machine as a portable personnel hoist.
    (b) Raising or lowering a transport. The employers must/would 
ensure that:
    (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 employers must/would power the hoist machine 
by an air, electric, hydraulic, or internal-combustion drive mechanism.
    (d) Constant-pressure control switch. The employers 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 employers 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 employers 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 employers 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 employers 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 employers must/would secure hoist machines in 
position to prevent movement, shifting, or dislodgement.
    (j) Location. The employers 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 (\1/2\) 
degree and one and one-half (1\1/2\) degrees for smooth drums, and 
between one-half (\1/2\) degree and two (2) degrees 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 employers 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 employers must/would never spool the 
rope closer than two (2) inches (5.1 cm) from the outer edge of the 
winding-drum flange.

[[Page 20778]]

    (m) Electrical system. The employers must/would ensure that all 
electrical equipment is weatherproof.
    (n) Limit switches. The employers 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 employers 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 employers 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 employers 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 employers 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 employers must/would maintain a safety 
factor of at least eight (8) times the maximum rated load capacity 
throughout the entire length of hoist rope.
    (c) Size. The employers 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 employers 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 employers 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 employers 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;
    (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 employers 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 maximum 
rated load capacity, 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 employers 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 employers 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 employers 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 employers 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 employers 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 employers 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 employers 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 employers must/
would fasten one end of each guide rope securely to the overhead 
support, with appropriate tension applied at the foundation.
    (c) Height. The employers must/would rig the guide ropes along the 
entire height of the hoist-machine structure.
10. Personnel Cage
    (a) Construction. The employers must/would ensure that the 
personnel cage is of steel-frame construction and capable of supporting 
a load that is four (4) times its maximum rated load capacity. The 
employers 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

[[Page 20779]]

    (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. The employers must/would ensure that the 
personnel cage has 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 employers 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 employers must/would ensure that the personnel cage 
has 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 employers must/would post the 
procedures for operating the personnel cage conspicuously at the hoist 
operator's station.
    (e) Capacity. The employers 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 employers 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 employers 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 employers 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 employers must/would attach 
safety clamps to each personnel cage for gripping the guide ropes.
    (c) Operation. The employers must/would ensure that the safety 
clamps attached to the personnel cage:
    (i) Operate on the ``broken rope principle'' defined in section 3 
(``Definitions'') of ANSI standard A10.22-1990 (R1998);
    (ii) Are 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 employers must/would keep the safety-clamp 
assemblies clean and functional at all times.
12. Overhead Protection
    (a) The employers 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 employers 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 employers 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 employers must/would ensure that 
written instructions for operating the emergency-escape device are 
attached to the device.
    (c) Training. The employers 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 Fall-Protection Equipment
    (a) Personnel platforms. When the employers elect to replace the 
personnel cage with a personnel platform in accordance with Condition 
2(a) (``Personnel platform'') 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) Fall-protection equipment. Before employees use work platforms 
or boatswains' chairs, the employers 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 employers 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 employers must/would comply with the accident-prevention 
requirements of Sec.  1926.20(b)(3).
16. Welding
    (a) The employers must/would use only qualified welders to weld 
components of the hoisting system.
    (b) The employers 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

[[Page 20780]]

    (ii) Perform the welding tasks in accordance with 29 CFR part 1926, 
subpart J (``Welding and Cutting'').

VII. Authority and Signature

    Jonathan L. Snare, Acting 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 at Washington, DC, on April 14, 2005.
Jonathan L. Snare,
Acting Assistant Secretary of Labor.
[FR Doc. 05-7999 Filed 4-20-05; 8:45 am]
BILLING CODE 4510-26-P