Commonwealth Dynamics, Inc., Mid-Atlantic Boiler & Chimney, Inc.,1, 10557-10565 [E6-2959]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 71, Number 40 (Wednesday, March 1, 2006)]
[Notices]
[Pages 10557-10565]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-2959]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[V-04-1]


Commonwealth Dynamics, Inc., Mid-Atlantic Boiler & Chimney, 
Inc.,\1\ and R and P Industrial Chimney Co., Inc.; Grant of a Permanent 
Variance
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    \1\ Designated as Alberici Mid-Atlantic, LLC (``Alberici'') on 
the notice of an application for a permanent variance and interim 
order published at 69 FR 48754. Mid-Atlantic Boiler & Chimney, Inc. 
(``MAB&C'') has acquired Alberici's chimney-construction assets, 
including equipment, contracts, and employees. Prior to this 
acquisition, Alberici notified employees who were being transferred 
to MAB&C that it has requested OSHA to transfer its interest in the 
variance application and interim order to MAB&C. In addition, an 
authorized representative for MAB&C certified that MAB&C agrees to 
comply with the grant of an interim order published at 69 FR 48754, 
and to comply with the conditions of the variance grant resulting 
from the variance application. (See Ex. 5-19.)
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AGENCY: Occupational Safety and Health Administration (OSHA), 
Department of Labor.

[[Page 10558]]


ACTION: Notice of a grant of a permanent variance.

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SUMMARY: This notice announces the grant of a permanent variance to 
Commonwealth Dynamics, Inc., Mid-Atlantic Boiler & Chimney, Inc., and R 
and P Industrial Chimney Co., Inc. (``the employers''). The permanent 
variance addresses the provision that regulates the tackle used for 
boatswains' 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. Instead of 
complying with these provisions, the employers must comply with a 
number of alternative conditions listed in this grant; these 
alternative conditions regulate rope-guided personnel-hoisting systems 
used during inside or outside chimney construction to raise or lower 
employees in personnel cages, personnel platforms, and boatswains' 
chairs between the bottom landing of a chimney and an elevated work 
location. Accordingly, OSHA finds that these alternative conditions 
protect employees at least as well as 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).

DATES: The effective date of the permanent variance is March 1, 2006.

FOR FURTHER INFORMATION: For information about this notice contact Ms. 
MaryAnn S. Garrahan, Director, Office of Technical Programs and 
Coordination Activities, Room N-3655, OSHA, U.S. Department of Labor, 
200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 
693-2110; fax (202) 693-1644. You may obtain additional copies of this 
notice from the Office of Publications, Room N-3101, OSHA, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210; telephone (202) 693-1888. For electronic copies of this notice, 
contact the Agency on its Web page at https://ww.osha.gov, and select 
``Federal Register,'' ``Date of Publication,'' and then ``2005.''
    Additional information 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, 201 Varick St., Room 670, New York, NY 
10014, telephone: (212) 337-2378, fax: (212) 337-2371.
U.S. Department of Labor, OSHA, the Curtis Center, Suite 740 West, 170 
South Independence Mall West, Philadelphia, PA 19106-3309, telephone: 
(215) 861-4900, fax: (215) 861-4904.
U.S. Department of Labor, OSHA, 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, 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, 525 Griffin St., Room 602, Dallas, TX 
75202, telephone: (214) 767-4731/-4736 (ext. 224), fax: (214) 767-4693/
-4188.
U.S. Department of Labor, OSHA, 1999 Broadway, Suite 1690, P.O. Box 
46550, Denver, CO 80201-6550, telephone: (720) 264-6550, fax: (720) 
264-6585.
U.S. Department of Labor, OSHA, 71 Stevenson St., Room 420, San 
Francisco, CA 94105, telephone: (415) 975-4310, fax: (415) 744-4319.
U.S. Department of Labor, OSHA, 1111 Third Ave., Suite 715, Seattle, WA 
98101-3212, telephone: (206) 553-5930, fax: (206) 553-6499.

SUPPLEMENTARY INFORMATION:

I. Background

    In the past 30 years, a number of chimney-construction companies 
have 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 boatswains' chairs (i.e., paragraph (o)(3) of 29 CFR 
1926.452), result in access problems that pose a serious danger to 
their employees. These companies requested permanent variances from 
these requirements, and proposed alternative equipment and procedures 
to protect employees while being transported 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 40627 (October 4, 1985), 52 FR 22552 (June 12, 
1987), and 68 FR 52961 (September 8, 2003)).\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 paragaph (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.
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    On October 27, 2003, January 20, 2004, and March 16, 2004, 
Commonwealth Dynamics, Inc., R and P Industrial Chimney Co., Inc., and 
Mid-Atlantic Boiler & Chimney, Inc., respectively, applied for a 
permanent variance from the same personnel-hoist and boatswains'-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 their variance 
application in the Federal Register on August 10, 2004 (69 FR 48754). 
OSHA received no hearing requests in response to these Federal Register 
notices. However, a private individual and a number of States and 
Territories having OSHA-approved safety and health programs (``State-
Plan States and Territories'') submitted comments on the proposed 
alternative. In addition, several other State-Plan States and 
Territories have commented on an earlier variance application involving 
the same standards submitted by other employers engaged in chimney 
construction and repair;\3\ OSHA is relying on these previous comments 
to determine the position of these State-Plan States and Territories on 
the variance application submitted by the present employers. (See 
sections IV (``Comments on the Proposed Variance'') and V (``Multi-
State Variance'') below for a discussion of these comments.)
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    \3\ The previous variance application was from American Boiler 
and Chimney Co. and Oak Park Chimney Corp. (68 FR 52961, September 
8, 2003).
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    Commonwealth Dynamics, Inc., Mid-Atlantic Boiler & Chimney, Inc., 
and R and P Industrial Chimney Co., Inc. (``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 
necessitates frequent relocation of, and adjustments to, the

[[Page 10559]]

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 proposed in their variance application to use a 
hoist system that lifts and lowers personnel-transport devices that 
include personnel cages, personnel platforms, or boatswains' chairs. In 
this regard, the employers proposed to 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 on these devices in the absence of employees. 
In addition, the employers proposed to attach a hopper or concrete 
bucket to the hoist system to raise or lower material inside or outside 
a chimney.
    The employers 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 the 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. 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 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 employers proposed to follow to 
improve employee 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 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 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);
     Ensuring that employees who use a personnel platform or 
boatswains' chair wear full-body harnesses and lanyards, and that the 
lanyards are attached to the lifelines during the entire period of 
vertical transit; and
     Securing the lifelines (used with a personnel platform or 
boatswains' 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.

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

    The employers noted in their variance request 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 transport them to and from an 
elevated scaffold located inside a chimney that has a small or tapering 
diameter. Paragraph (o)(3) of 29 CFR 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 stated in their 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 employers proposed 
to use the hoisting system described above in section I 
(``Background'') of this notice to raise or lower employees in a 
personnel cage to work locations both inside and outside a chimney. In 
addition, the employers proposed to use a personnel cage for this 
purpose to the extent that adequate space is available, and to use a 
personnel platform when using a personnel cage was infeasible because 
of limited space. When available space makes using a personnel platform 
infeasible, the employers proposed to use a boatswains' chair to lift 
employees to work locations. The proposed variance limited use of the 
boatswains' chair to elevations above the last work location that the 
personnel platform can reach; under these conditions, the employers 
proposed to 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 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 employees 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 employees 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 29 CFR 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 asserted in 
their 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 
employees to a serious fall hazard. Additionally, they noted that the 
requirement to extend the enclosures 10 feet above the outside 
scaffolds often exposes the employees

[[Page 10560]]

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 employers contended 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 
29 CFR 1926.552(c)(1) and (c)(2), the employers proposed to use the 
rope-guided hoist system discussed in section I (``Background'') of 
this notice to transport employees to and from work locations inside 
and outside chimneys. They claimed that this hoist system would make it 
unnecessary for them 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.
    The employers asserted that the proposed hoisting system protected 
employees at least as effectively as the personnel-hoist requirements 
of 29 CFR 1926.552(c). The following section of this preamble reviews 
the comments received on the employers' proposed variance.

IV. Comments on the Proposed Variance

    The only comment from the private sector regarding the proposed 
variance was submitted by Mr. Bradley Glosson of MACB Technical 
Services (Ex. 4-1). Mr. Glosson recommended adopting American National 
Safety Standard ASME B30.23 (``Personnel Lifting Systems''), stating:

    Any variance approved should be based upon a uniform, nationally 
endorsed and professionally established set of criteria for the safe 
design and operational issues. Review and consideration of the B30.3 
Standard, and the President[i]al Order to use existing National 
Standards wherever feasible, should be undertaken prior to issuance 
of this variance.

    In response to this comment, the Agency notes that the employer 
seeking a permanent variance proposes the alternative conditions in the 
variance request. The Agency's responsibility under section (6)(d) of 
the Occupational Safety and Health Act of 1970 is to determine ``by a 
preponderance of the evidence that the conditions, practices, means, 
methods, operations, or processes used or proposed to be used * * * 
will provide employment and places of employment to [their] employees 
which are as safe and healthful as those which would prevail if [they] 
complied with the standard.'' (See 29 U.S.C. 655.) Therefore, 
employers, not the Agency, determine what will be proposed as an 
alternative to an OSHA standard.
    The ``Presidential Order'' to which Mr. Glosson refers is most 
likely Office of Management and Budget (OMB) Circular A-119 (``Federal 
Participation in the Development and Use of Voluntary Consensus 
Standards and in Conformity Assessment Activities''), the most recent 
edition of which was published by OMB on August 19, 2002. The Circular 
does not refer to variances. Variances are applied narrowly (only to 
the employers that request them) and typically involve only a few 
provisions of a standard. As explained above, OSHA's obligation to 
issue variances is set forth in Section 6(d) of the OSH Act; the 
granting of these permanent variances is in accord with OSHA's 
statutory responsibilities.
    OSHA also received comments from 17 of the 26 States and 
Territories that operate occupational safety and health State plans 
approved under section 18 of the Occupational Safety and Health Act of 
1970 (i.e., ``State-Plan States''; 29 U.S.C. 667). The Agency received 
these 17 comments after it sent each of these 26 States and Territories 
a copy of the application and requested that they provide information 
on whether their standards (the ones that would be affected by the 
proposed variance) were identical to the corresponding Federal OSHA 
standards, and, if so, did they agree to accept the alternative 
conditions proposed by the employers.
    None of the 17 State-Plan States and Territories that submitted 
comments provided substantive remarks regarding the conditions proposed 
in the variance application. Ten of these 17 State-Plan States and 
Territories reported that they have standards that are identical to the 
Federal OSHA standards, and that they agreed to accept the proposed 
alternative. These 10 State-Plan States and one Territory are: Arizona, 
Indiana, Maryland, Minnesota, North Carolina, Oregon, Puerto Rico, 
Tennessee, Virginia, and Wyoming (Exs. 5-1, 5-3-1, 5-16, 5-14, , 5-11, 
5-10, 5-9, 5-7, 5-6, and 5-5, respectively). Three of the State-Plan 
States (Kentucky, Michigan, and South Carolina) agreed with the 
proposed alternative, but did so conditionally. Kentucky (Ex. 5-4) 
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 (Ex. 5-15) 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 (Ex. 5-8) 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.
    Three State-Plan States (Connecticut (Ex. 5-2), New Jersey (Ex. 5-
13), and New York (Ex. 5-12)) have OSHA-approved safety and health 
programs that cover only public-sector (i.e., State and local 
government) employment. While OSHA received no comment from the Virgin 
Islands, its State-Plan program also covers only public-sector 
employment. Therefore, in these State-Plan States and one Territory, 
the authority to cover private-sector employers under the variance 
continues to reside with Federal OSHA.
    Washington State (Ex. 5-17) could not agree to the alternative 
conditions because its applicable standards were not identical to the 
OSHA standards. Therefore, the employers must apply separately for a 
permanent variance from Washington State.
    In response to a previous application by chimney-construction 
companies for an identical variance (see footnote 3), four State-Plan 
States (Alaska, Nevada, New Mexico, and Vermont) indicated that their 
standards were the same as the Federal OSHA standards, and agreed to 
the terms of the variance. Utah agreed to accept the Federal variance, 
but requires the employers to contact the Occupational Safety and 
Health Division, Labor Commission of Utah,

[[Page 10561]]

regarding a procedural formality that must be completed before 
implementing the variance in that State. California, Iowa, and Hawaii 
have standards that either differ from the Federal standards or did not 
agree to the alternative conditions proposed in the variance 
application, and would not permit the employers to implement in their 
States any variance resulting from the application without further 
application to the State.

V. Multi-State Variance

    The variance application 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 variance application.
    OSHA requested comments on this application from each of the State-
Plan States and Territories. The Agency noted in its request that, 
absent any comment, it would assume that the State or Territory's 
position regarding this variance application was the same as the 
position it took on a previous variance application (see footnote 3). 
As noted under the previous section, several State-Plan States and 
Territories did not submit comments on this variance application, 
indicating that they continue to maintain their previous positions 
regarding the alternative conditions proposed under this variance 
application. The following paragraph provides a summary of the 
positions taken by the State-Plan States and Territories on the 
proposed alternative conditions.
    The following thirteen State-Plan States and one Territory have 
identical 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 12 States and Territories with OSHA-approved 
State plans, three of the States and one Territory (Connecticut, New 
Jersey, New York, and the Virgin Islands) cover only public-sector 
employees and have no authority over the private-sector employees 
addressed in the variance application (i.e., that authority continues 
to reside with Federal OSHA). Additionally, four States (Kentucky, 
Michigan, South Carolina, and Utah) accepted the proposed alternative 
when specific additional requirements are fulfilled, while three States 
and one Territory (California, Hawaii, Iowa, and Washington) either had 
different requirements in their standards or declined to accept the 
terms of the variance.
    Based on the responses received from State-Plan States and 
Territories, the permanent Federal OSHA variance will be effective in 
the following 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 
Kentucky, Michigan, South Carolina, and Utah when the employers meet 
specific additional requirements. However, this permanent variance does 
not apply in Washington, California, Hawaii, or Iowa. As stated 
earlier, in the three States and one Territory (Connecticut, New 
Jersey, New York, and the Virgin Islands) that have State-Plan programs 
that cover only public-sector employees, authority over the employers 
under the permanent variance continues to reside with Federal OSHA.

VI. Decision

    Commonwealth Dynamics, Inc., Mid-Atlantic Boiler & Chimney, Inc., 
and R and P Industrial Chimney Co., Inc. seek a permanent variance from 
the provision that regulates the tackle used for boatswains' 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 boatswains' 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 an employee to safely 
control the ascent, descent, and stopping locations of the boatswains' 
chair. The proposed alternative to these requirements allows the 
employer to use a boatswains' chair to lift employees to work locations 
inside and outside a chimney when both a personnel cage and a personnel 
platform are infeasible. The employers proposed to attach the 
boatswains' chair to the hoisting system described as an alternative 
for 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 
employees 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.
    As an alternative to complying with the hoist-tower requirements of 
29 CFR 1926.552(c)(1) and (c)(2), the employers proposed to use a rope-
guided hoist system to transport employees 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 employees to and from elevated work 
locations, the employers proposed to attach a personnel cage to the 
hoist system. However, when they can demonstrate that adequate space is 
not available for the cage, they may use a personnel platform above the 
last worksite that the cage can reach. Further, when the employers show 
that space limitations make it infeasible to use a work platform for 
transporting employees, they have proposed to use a boatswains' chair 
above the last worksite serviced by the personnel platform. Using the 
proposed 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 employers have requested a permanent variance from 
these and related provisions (i.e.,

[[Page 10562]]

paragraphs (c)(3), (c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16)).
    After reviewing the variance application, as well as the comments 
made to the record regarding the application, OSHA has made only minor 
editorial amendments and technical corrections to the proposed 
variance.\4\ Therefore, 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 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 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.
---------------------------------------------------------------------------

    \4\ Among the technical corrections, OSHA added two conditions 
to the permanent variance. The first condition is a new paragraph 
1(b) that requires the employers to use personnel cages, personnel 
platforms, or boatswains' chairs only to transport employees with 
the tools and materials necessary to do their work, and to attach a 
hopper or concrete bucket to the hoist system for transporting other 
materials and tools inside or outside a chimney. The second 
condition revises paragraph 2(b) in the variance application by 
adding a requirement that employers attach a boatswains' chair to 
the hoisting cable only when they can demonstrate that the 
structural arrangement of the chimney precludes the safe use of the 
block and tackle required by 29 CFR 1926.452(o)(3). Both of these 
technical corrections are consistent with language proposed by the 
employers and described in section III (SUPPLEMENTARY INFORMATION) 
of their variance application (see 69 FR 48755 and 48756).
---------------------------------------------------------------------------

VII. Order

    OSHA issues this order authorizing Commonwealth Dynamics, Inc., 
Mid-Atlantic Boiler & Chimney, Inc., and R and P Industrial Chimney 
Co., Inc. (``the employers'') 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:

1. Scope of the Permanent Variance

    (a) This permanent variance applies 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) When using a rope-guided hoist system as specified in this 
permanent variance, the employers must:
    (i) Use the personnel cages, personnel platforms, or boatswains' 
chairs raised and lowered by the rope-guided hoist system solely to 
transport employees with the tools and materials necessary to do their 
work; and
    (ii) Attach a hopper or concrete bucket to the rope-guided 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 employers 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 
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. Employers must:
    (i) Before using a boatswains' chair, demonstrate that available 
space makes it infeasible to use a personnel platform for transporting 
employees;
    (ii) Limit use of a boatswains' chair to elevations above the last 
work location that the personnel platform can reach; and
    (iii) Use a boatswains' chair in accordance with block-and-tackle 
requirements specified by 29 CFR 1926.452(o)(3), unless they can 
demonstrate that the structural arrangement of the chimney precludes 
such use.

3. Qualified Competent Person

    (a) The employers 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 employees.
    (b) The employers 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 employers must designate the hoist machine 
as a portable personnel hoist.
    (b) Raising or lowering a transport. The employers must 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 power the hoist machine by an 
air, electric, hydraulic, or internal-combustion drive mechanism.
    (d) Constant-pressure control switch. The employers must:
    (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:
    (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 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 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 ensure that the frame of the hoist

[[Page 10563]]

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 secure hoist machines in position 
to prevent movement, shifting, or dislodgement.
    (j) Location. The employers 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.\1\
---------------------------------------------------------------------------

    \1\ 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 employers 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 employers 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 employers must ensure that all 
electrical equipment is weatherproof.
    (n) Limit switches. The employers must 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:
    (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 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:
    (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 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 maintain a safety factor of 
at least eight (8) times the safe workload throughout the entire length 
of hoist rope.
    (c) Size. The employers 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 employers 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 employers must 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:
    (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 employers 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 employers 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 employers 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 employers must 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 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 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 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 affix two (2) guide 
ropes by swivels to the cathead. The guide ropes must:

[[Page 10564]]

    (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 
fasten one end of each guide rope securely to the overhead support, 
with appropriate tension applied at the foundation.
    (c) Height. The employers 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 employers 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; and
    (vi) Safe handholds (e.g., rope grips--but not rails or hard 
protrusions \2\) that accommodate each occupant.
---------------------------------------------------------------------------

    \2\ To reduce impact hazards should employees lose their balance 
because of cage movement.
---------------------------------------------------------------------------

    (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 footblock. In 
addition, the employers 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 employers must post the procedures 
for operating the personnel cage conspicuously at the hoist operator's 
station.
    (e) Capacity. The employers 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) Employee notification. The employers must 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:
    (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 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:
    (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 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 employers must keep the safety-clamp 
assemblies clean and functional at all times.

12. Overhead Protection

    (a) The employers must 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 ensure that the canopy or shield slopes to 
the outside of the personnel cage.\3\
---------------------------------------------------------------------------

    \3\ 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 employers 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 employers must ensure that written 
instructions for operating the emergency-escape device are attached to 
the device.
    (c) Training. The employers must 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) of this variance, they 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).
    (b) Fall-protection equipment. Before employees use work platforms 
or boatswains' chairs, the employers must equip the employees with, and 
ensure that they use, full body harnesses,

[[Page 10565]]

lanyards and lifelines as specified by 29 CFR 1926.104 and the 
applicable requirements of 29 CFR 1926.502(d). This requirement 
includes securing the lifelines to the top of the chimney and to a 
weight at the bottom of the chimney, and ensuring the employees' 
lanyards are attached to the lifeline during the entire period of 
vertical transit.

15. Inspections, Tests, and Accident Prevention

    (a) The employers 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 employers must comply with the accident-prevention 
requirements of 29 CFR 1926.20(b)(3).

16. Welding

    (a) The employers must use only qualified welders to weld 
components of the hoisting system.
    (b) The employers 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 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 January 30, 2005.
Jonathan L. Snare,
Acting Assistant Secretary of Labor.
[FR Doc. E6-2959 Filed 2-28-06; 8:45 am]
BILLING CODE 4510-26-P