Gibraltar Chimney International, LLC, Hoffmann, Inc., and Kiewit Industrial Co.; Application for Permanent Variance and Interim Order, Grant of Interim Order, and Request for Comments, 6002-6008 [E7-2046]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 72, Number 26 (Thursday, February 8, 2007)]
[Notices]
[Pages 6002-6008]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-2046]



[[Page 6002]]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[V-06-1]


Gibraltar Chimney International, LLC, Hoffmann, Inc., and Kiewit 
Industrial Co.; 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: Gibraltar Chimney International, LLC, Hoffmann Inc., and 
Kiewit Industrial Co. (``the applicants'') 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 applicants 
have requested an interim order based on the alternative conditions 
specified by the variance application. Since these conditions are the 
same as the conditions specified in other permanent variances granted 
recently by the Agency for these boatswains'-chair and hoist-tower 
provisions, OSHA is granting the applicants' request for an interim 
order.

DATES: Comments and requests for a hearing must be submitted 
(postmarked, sent, or received) by March 12, 2007. The interim order 
specified by this notice becomes effective on February 8, 2007.

ADDRESSES: Electronic. Comments and requests for a hearing may be 
submitted electronically at https://www.regulations.gov, which is the 
Federal eRulemaking Portal. Follow the instructions online for 
submitting 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 to the OSHA Docket Office at 
(202) 693-1648; hard copies of these comments are not required. Instead 
of transmitting facsimile copies of attachments that supplement their 
comments (e.g., studies and journal articles), commenters may submit 
these attachments, 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 attachments must 
clearly identify the sender's name, date, subject, and docket number 
(i.e., V-06-1) so that the Agency can attach them to the appropriate 
comments.
    Regular mail, express delivery, hand (courier) 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-06-1, Technical Data 
Center, Room N-2625, OSHA, U.S. Department of Labor, 200 Constitution 
Ave., NW., Washington, DC 20210; telephone: (202) 693-2350. Please 
contact the OSHA Docket Office at (202) 693-2350 for information about 
security procedures concerning the delivery of materials by express 
delivery, hand delivery, and messenger service. The hours of operation 
for the OSHA Docket Office and Department of Labor are 8:15 a.m. to 
4:45 p.m., e.t.
    Instructions. All submissions must include the Agency name and the 
OSHA docket number (i.e., OSHA Docket No. V-06-1). Comments and other 
material, including any personal information, are placed in the public 
docket without revision, and will be available online at https://
www.regulations.gov. 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.
    Docket. To read or download comments or other material in the 
docket, go to https://www.regulations.gov or to the OSHA Docket Office 
at the address above. Documents in the docket are listed in the https://
www.regulations.gov index; however, some information (e.g., copyrighted 
material) is not publicly available to read or download through this 
Web site. However, all submissions, including copyrighted material, are 
available for inspection and copying at the OSHA Docket Office.

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 Ave. NW., Washington, DC 20210; telephone: (202) 693-
2110; fax: (202) 693-1644. For additional copies of this Federal 
Register notice, contact the Office of Publications, Room N-3103, OSHA, 
U.S. Department of Labor, 200 Constitution Ave., NW., Washington, DC 
20210 (telephone: (202) 693-1888). Electronic copies of this Federal 
Register notice, as well as news releases and other relevant documents, 
are available at OSHA's Web site on the Internet at 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 website 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, 201 Varick 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: (972) 850-4145; fax: (972) 850-4149.
     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: (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) 
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

    Gibraltar Chimney International, LLC, Hoffmann, Inc., and Kiewit 
Industrial Co. (hereafter, ``the applicants'') have submitted 
applications for a permanent variance under Section 6(d) of the

[[Page 6003]]

Occupational Safety and Health Act of 1970 (29 U.S.C. 655) and 29 CFR 
1905.11 (``Variances and other relief under section 6(d)'') (see Exs. 
4-1 and 4-2).\1\ The applicants seek a permanent variance from Sec.  
1926.452(o)(3), which provides the tackle requirements for boatswains' 
chairs. The applicants also request a variance from paragraphs (c)(1) 
through (c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16) of Sec.  
1926.552 that regulate hoist towers. These latter paragraphs specify 
the following requirements:
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    \1\ The principle address for Hoffman, Inc. is 6001 49th St. 
South, Muscatine, IA 52761, and the principal address for Gibraltar 
Chimney International, LLC is 92 Cooper Ave., Box 386, Tonawanda, NY 
14151-0386.
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     (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 applicants contend that the permanent variance would provide 
their employees with a place of employment that is at least as safe and 
healthful as they would obtain under the existing provisions.
    The places of employment affected by this variance application are 
the present and future projects where the applicants construct 
chimneys, located in states under federal authority, 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 applicants 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. The 
applicants 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 applicants 
have informed employees and their representatives of their right to 
petition the Assistant Secretary of Labor for Occupational Safety and 
Health for a hearing on this variance application.

II. Multi-State Variance

    In their variance applications, the employers stated that they 
perform chimney work in a number of States and Territories that operate 
OSHA-approved safety and health programs under Section 18 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.). 
Twenty-six States and Territories have OSHA-approved safety and health 
programs.\2\ As part of this variance process, the Directorate of 
Cooperative and State Programs will notify the State-Plan States and 
Territories of this variance application and advise them that unless 
they object, OSHA will assume the State's position regarding this 
application is the same as its position regarding prior identical 
variances. Fourteen States have agreed to the terms of the earlier 
requests (i.e., Alaska, Arizona, Indiana, Maryland, Minnesota, Nevada, 
New Mexico, North Carolina, Oregon, Puerto Rico, Tennessee, Vermont, 
Virginia, and Wyoming). Four States have imposed additional 
requirements and conditions (i.e., Kentucky, Michigan, South Carolina, 
and Utah), and four States have objected to the earlier variance 
requests (i.e., California, Hawaii, Iowa, and Washington).
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    \2\ Three State-Plan States (i.e., Connecticut, New Jersey, and 
New York) and one Territory (i.e., Virgin Islands) limit their 
occupational safety and health authority to public-sector employees 
only. State-Plan States and Territories that have jurisdiction over 
both public- and private-sector employers and employees are: Alaska, 
Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, 
Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, 
Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, 
Washington, and Wyoming.
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III. Supplementary Information

A. Overview

    The applicants construct, remodel, repair, maintain, inspect, and 
demolish tall chimneys made of reinforced concrete, brick, and steel. 
This work, which occurs throughout the United States, requires the 
applicants to transport employees and construction material to and from 
elevated work platforms and scaffolds located, respectively, inside and 
outside tapered chimneys. While tapering contributes to the stability 
of a chimney, it requires frequent relocation of, and adjustments to, 
the work platforms and scaffolds so that they will fit the decreasing 
circumference of the chimney as construction progresses upwards.
    To transport employees to various heights inside and outside a 
chimney, the applicants propose to use a hoist system that would lift 
and lower personnel-transport devices that include personnel cages, 
personnel platforms, or boatswains' chairs. The applicants also would 
attach a hopper or concrete bucket to the hoist system to raise or 
lower material inside or outside a chimney. The applicants would use 
personnel cages, personnel platforms, or boatswains' chairs solely to 
transport employees with the tools and materials necessary to do their 
work, and not to transport only materials or tools in the absence of 
employees.
    The applicants would use a hoist engine, located and controlled 
outside the chimney, to power the hoist system. The system 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 applicants would use a 
headache ball, located on the hoist rope directly above the load, to 
counterbalance the rope's weight between the cathead sheaves and the 
footblock.
    The applicants would implement additional conditions to improve 
employee safety, including:
     Attaching the wire rope to the personnel cage using a 
keyed-screwpin shackle or positive-locking link;
     Adding limit switches to the hoist system to prevent 
overtravel by the personnel- or material-transport devices;
     Providing the safety factors and other precautions 
required for personnel hoists specified by the pertinent provisions of 
Sec.  1926.552(c), including canopies and shields to protect employees 
located in a personnel cage from material that may fall during hoisting 
and other overhead activities;
     Providing falling-object protection for scaffold platforms 
as specified by Sec.  1926.451(h)(1);

[[Page 6004]]

     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 
boatswains' 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 
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.

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

    Since 1973, a number of 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 
applicants are now proposing to use in this variance application. The 
Agency published the permanent variances for these companies at 38 FR 
8545 (April 3, 1973), 44 FR 51352 (August 31, 1979), 50 FR 20145 (May 
14, 1985), 50 FR 40627 (October 4, 1985), 52 FR 22552 (June 12, 1987), 
68 FR 52961 (September 8, 2003), 70 FR 72659 (December 6, 2005), and 71 
FR 10557 (March 1, 2006).\3\
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    \3\ 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 (1)(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. 4-3 and 4-4). 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 Ex. 4-5).
    The permanent variance granted by OSHA to American Boiler and 
Chimney Co. and Oak Park Chimney Corp. (see 68 FR 52961, September 8, 
2003) updated the permanent variances granted by the Agency in the 
1970s and 1980s by clarifying the alternative conditions and citing the 
most recent consensus standards and other references. On the basis of 
this experience and knowledge, the Agency finds that the applicants' 
request for a permanent variance is 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 this variance application will provide the 
applicants' employees with at least the same level of safety that they 
would receive from Sec.  1926.452(o)(3) and paragraphs (c)(1) through 
(c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16) of Sec.  1926.552.

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

    The applicants state that it is necessary, on occasion, to use a 
boatswains' chair to transport employees to and from a bracket scaffold 
on the outside of an existing chimney during flue installation or 
repair work, or to and from an elevated scaffold located inside a 
chimney that has a small or tapering diameter. Paragraph (o)(3) of 
Sec.  1926.452, which regulates the tackle used to rig a boatswains' 
chair, states that this tackle must ``consist of correct size ball 
bearings or bushed blocks containing safety hooks and properly `eye-
spliced' minimum five-eighth (5/8'') inch diameter first-grade manila 
rope [or equivalent rope].''
    The primary purpose of this paragraph is to allow an employee to 
safely control the ascent, descent, and stopping locations of the 
boatswains' chair. However, the applicants note that the required 
tackle is difficult or impossible to operate on some chimneys that are 
over 200 feet tall because of space limitations. Therefore, as an 
alternative to complying with the tackle requirements specified by 
Sec.  1926.452(o)(3), the applicants propose to use the hoisting system 
described in 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 applicants would use a personnel cage for this 
purpose to the extent that adequate space is available; they would use 
a personnel platform whenever a personnel cage is infeasible because of 
limited space. However, when limited space also makes a personnel 
platform infeasible, the applicants then would use a boatswains' chair 
to lift employees to work locations. The applicants would limit use of 
the boatswains' chair to elevations above the highest work location 
that the personnel cage and personnel platform can reach; under these 
conditions, the applicants 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 
extra bridging and bracing must be installed to support a walkway 
between the hoist tower and the tapered chimney.
    Paragraph (c)(1) of Sec.  1926.552 requires the employer to enclose 
hoist towers located outside a chimney on the side or sides used for 
entrance to, and exit from, the chimney; these enclosures must extend 
the full height of the hoist tower. The applicants assert that it is 
impractical and hazardous to locate a hoist tower outside tapered 
chimneys because it becomes increasingly difficult, as a chimney rises, 
to erect, guy, and brace a hoist tower; under these conditions, access 
from the hoist tower to the chimney or to the movable scaffolds used in 
constructing the chimney exposes employees to a serious fall hazard. 
Additionally, the applicants note that the requirement to extend the 
enclosures 10 feet above the outside scaffolds often exposes the 
employees

[[Page 6005]]

involved in building these extensions to dangerous wind conditions.
    Paragraph (c)(2) of Sec.  1926.552 requires that employers enclose 
all four sides of a hoist tower even when the tower is located inside a 
chimney; the enclosure must extend the full height of the tower. The 
applicants contend that it is hazardous for employees to erect and 
brace a hoist tower inside a chimney, especially small-diameter or 
tapered chimneys, or chimneys with sublevels, because these structures 
have limited space and cannot accommodate hoist towers; space 
limitations result from chimney design (e.g., tapering), as well as 
reinforced steel projecting into the chimney from formwork that is near 
the work location.
    As an alternative to complying with the hoist-tower requirements of 
Sec.  1926.552(c)(1) and (c)(2), the applicants propose to use the 
rope-guided hoist system described above in section III.A 
(``Overview'') of this application to transport employees to and from 
work locations inside and outside chimneys. Use of the proposed hoist 
system would eliminate the need for the applicants to comply with other 
provisions of Sec.  1926.552(c) that specify requirements for hoist 
towers. Therefore, the applicants 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 applicants assert that the proposed hoisting system would 
protect its employees at least as effectively as the hoist-tower 
requirements of Sec.  1926.552(c).

IV. Grant of Interim Order

    In addition to requesting a permanent variance, the applicants also 
requested an interim order that would remain in effect until the Agency 
makes a decision on their application for a permanent variance. During 
this period, the applicants 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 a number 
of permanent variances from these provisions since 1973. Over this 
period, the affected companies have used effectively the alternative 
conditions specified in the variances. Moreover, the conditions of the 
interim order requested by the applicants substantially duplicate the 
conditions approved recently in the permanent variance granted to 
American Boiler and Chimney Co. and Oak Park Chimney Corp. (see 68 FR 
52961). In granting this permanent variance to American Boiler and 
Chimney Co. and Oak Park Chimney Corp., the Agency stated, ``[W]hen the 
employers comply with the conditions of the following order, their 
employees will be exposed to working conditions that are at least as 
safe and healthful as they would be if the employers complied with 
paragraph (o)(3) of Sec.  1926.452, and paragraphs (c)(1) through 
(c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16) of Sec.  1926.552.'' 
(See 68 FR 52967.)
    Having determined previously that the alternative conditions 
proposed by the applicants will protect employees at least as 
effectively as the requirements of paragraph (o)(3) of Sec.  1926.452 
and paragraphs (c)(1) through (c)(4), (c)(8), (c)(13), (c)(14)(i), and 
(c)(16) of Sec.  1926.552, OSHA has decided to grant an interim order 
to the applicants pursuant to the provisions of 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 applicants will: (1) 
Provide notice of this grant of interim order to the employees affected 
by the conditions of the interim order using the same means it used to 
inform these employees of their applications 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.

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 Gibraltar Chimney International, LLC, Hoffmann, Inc., and 
Kiewit Industrial Co., as part of their applications for a permanent 
variance described in this Federal Register notice. In addition, these 
conditions specify the alternatives to the requirements of paragraph 
(o)(3) of Sec.  1926.452 and paragraphs (c)(1) through (c)(4), (c)(8), 
(c)(13), (c)(14)(i), and (c)(16) of Sec.  1926.552 that the applicants 
are proposing in their application for a permanent variance. These 
conditions include: \4\
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    \4\ 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 
to tapered chimneys when the applicants use a rope-guided hoist system 
during inside or outside chimney construction to raise or lower their 
employees between the bottom landing of a chimney and an elevated work 
location on the inside or outside surface of the chimney.
    (b) When using a rope-guided hoist system as specified in this 
permanent variance, the applicants must/would:
    (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 applicants must/would comply fully with all other 
applicable provisions of 29 CFR parts 1910 and 1926.

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

    (a) Personnel platform. When the applicants demonstrate that 
available space makes a personnel cage for transporting employees 
infeasible, they may replace the personnel cage with a personnel 
platform when they limit use of the personnel platform to elevations 
above the last work location that the personnel cage can reach.
    (b) Boatswains' chair. The applicants must/would:

[[Page 6006]]

    (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 applicants must/would:
    (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 applicants must/would use a qualified competent person to 
design and maintain the cathead described under Condition 8 (``Cathead 
and Sheave'') below.

4. Hoist Machine

    (a) Type of hoist. The applicants must/would designate the hoist 
machine as a portable personnel hoist.
    (b) Raising or lowering a transport. The applicants must/would 
ensure that:
    (i) The hoist machine includes a base-mounted drum hoist designed 
to control line speed; and
    (ii) Whenever they raise or lower a personnel or material hoist 
(e.g., a personnel cage, personnel platform, boatswains' chair, hopper, 
concrete bucket) using the hoist system:
    (A) The drive components are engaged continuously when an empty or 
occupied transport is being lowered (i.e., no ``freewheeling'');
    (B) The drive system is interconnected, on a continuous basis, 
through a torque converter, mechanical coupling, or an equivalent 
coupling (e.g., electronic controller, fluid clutches, hydraulic 
drives).
    (C) The braking mechanism is applied automatically when the 
transmission is in the neutral position and a forward-reverse coupling 
or shifting transmission is being used; and
    (D) No belts are used between the power source and the winding 
drum.
    (c) Power source. The applicants must/would power the hoist machine 
by an air, electric, hydraulic, or internal-combustion drive mechanism.
    (d) Constant-pressure control switch. The applicants must/would:
    (i) Equip the hoist machine with a hand- or foot-operated constant-
pressure control switch (i.e., a ``deadman control switch'') that stops 
the hoist immediately upon release; and
    (ii) Protect the control switch to prevent it from activating if 
the hoist machine is struck by a falling or moving object.
    (e) Line-speed indicator. The applicants must/would:
    (i) Equip the hoist machine with an operating line-speed indicator 
maintained in good working order; and
    (ii) Ensure that the line-speed indicator is in clear view of the 
hoist operator during hoisting operations.
    (f) Braking systems. The applicants must/would equip the hoist 
machine with two (2) independent braking systems (i.e., one automatic 
and one manual) located on the winding side of the clutch or couplings, 
with each braking system being capable of stopping and holding 150 
percent of the maximum rated load.
    (g) Slack-rope switch. The applicants must/would equip the hoist 
machine with a slack-rope switch to prevent rotation of the winding 
drum under slack-rope conditions.
    (h) Frame. The applicants must/would ensure that the frame of the 
hoist machine is a self-supporting, rigid, welded-steel structure, and 
that holding brackets for anchor lines and legs for anchor bolts are 
integral components of the frame.
    (i) Stability. The applicants must/would secure hoist machines in 
position to prevent movement, shifting, or dislodgement.
    (j) Location. The applicants must/would:
    (i) Locate the hoist machine far enough from the footblock to 
obtain the correct fleet angle for proper spooling of the cable on the 
drum; and
    (ii) Ensure that the fleet angle remains between one-half degree 
(\1/2\[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.\5\
---------------------------------------------------------------------------

    \5\ This provision 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 applicants must/would:
    (i) Provide a winding drum for the hoist that is at least 30 times 
the diameter of the rope used for hoisting; and
    (ii) Ensure that the winding drum has a flange diameter that is at 
least one and one-half (1-\1/2\) times the winding-drum diameter.
    (l) Spooling of the rope. The applicants must/would never spool the 
rope closer than two (2) inches (5.1 cm) from the outer edge of the 
winding-drum flange.
    (m) Electrical system. The applicants must/would ensure that all 
electrical equipment is weatherproof.
    (n) Limit switches. The applicants must/would equip the hoist 
system with limit switches and related equipment that automatically 
prevent overtravel of a personnel cage, personnel platform, boatswains' 
chair, or material-transport device at the top of the supporting 
structure and at the bottom of the hoistway or lowest landing level.

5. Methods of Operation

    (a) Employee qualifications and training. The applicants must/
would:
    (i) Ensure that only trained and experienced employees, who are 
knowledgeable of hoist-system operations, control the hoist machine; 
and
    (ii) Provide instruction, periodically and as necessary, on how to 
operate the hoist system to each employee who uses a personnel cage, 
personnel platform, or boatswains' chair for transportation.
    (b) Speed limitations. The applicants must/would not operate the 
hoist at a speed in excess of:
    (i) Two hundred and fifty (250) feet (76.9 m) per minute when a 
personnel cage is being used to transport employees;
    (ii) One hundred (100) feet (30.5 m) per minute when a personnel 
platform or boatswains' chair is being used to transport employees; or
    (iii) A line speed that is consistent with the design limitations 
of the system when only material is being hoisted (i.e., using a 
dedicated material-transport device such as a hopper or concrete 
bucket).
    (c) Communication. The applicants must/would:
    (i) Use an electronic voice-communication system \6\ to maintain 
communication between the hoist operator and the employees located in

[[Page 6007]]

or on a moving personnel cage, personnel platform, or boatswains' 
chair;
---------------------------------------------------------------------------

    \6\ OSHA is revising the phrase ``a voice-mediated 
intercommunication system'' used in previous variances to ``an 
electronic voice-communication systems'' to clarify the requirement.
---------------------------------------------------------------------------

    (ii) Stop hoisting if, for any reason, the communication system 
fails to operate effectively; and
    (iii) Resume hoisting only when the site superintendent determines 
that it is safe to do so.

6. Hoist Rope

    (a) Grade. The applicants must/would use a wire rope for the hoist 
system (i.e., ``hoist rope'') that consists of extra-improved plow 
steel, an equivalent grade of non-rotating rope, or a regular lay rope 
with a suitable swivel mechanism.
    (b) Safety factor. The applicants must/would maintain a safety 
factor of at least eight (8) times the safe workload throughout the 
entire length of hoist rope.
    (c) Size. The applicants must/would use a hoist rope that is at 
least one-half (1/2) inch (1.3 cm) in diameter.
    (d) Inspection, removal, and replacement. The applicants must/
would:
    (i) Thoroughly inspect the hoist rope before the start of each job 
and on completing a new setup;
    (ii) Maintain the proper diameter-to-diameter ratios between the 
hoist rope and the footblock and the sheave by inspecting the wire rope 
regularly (see Conditions 7(c) and 8(d) below); and
    (iii) Remove and replace the wire rope with new wire rope when any 
condition specified by 29 CFR 1926.552(a)(3) occurs.
    (e) Attachments. The applicants must/would attach the rope to a 
personnel cage, personnel platform, or boatswains' chair with a keyed-
screwpin shackle or positive-locking link.
    (f) Wire-rope fastenings. When the applicants use clip fastenings 
(e.g., U-bolt wire-rope clips) with wire ropes, they must/would:
    (i) Use Table H-20 of 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 applicants must/would use a footblock:
    (i) Consisting of construction-type blocks of solid single-piece 
bail with a safety factor that is at least four (4) times the safe 
workload, or an equivalent block with roller bearings;
    (ii) Designed for the applied loading, size, and type of wire rope 
used for hoisting;
    (iii) Designed with a guard that contains the wire rope within the 
sheave groove;
    (iv) Bolted rigidly to the base; and
    (v) Designed and installed so that it turns the moving wire rope to 
and from the horizontal or vertical direction as required by the 
direction of rope travel.
    (b) Directional change. The applicants must/would ensure that the 
angle of change in the hoist rope from the horizontal to the vertical 
direction at the footblock is approximately 90[deg].
    (c) Diameter. The applicants must/would ensure that the line 
diameter of the footblock is at least 24 times the diameter of the 
hoist rope.

8. Cathead and Sheave

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

9. Guide Ropes

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

10. Personnel Cage

    (a) Construction. The applicants 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 
applicants also must/would ensure that the personnel cage has:
    (i) A top and sides that are permanently enclosed (except for the 
entrance and exit);
    (ii) A floor securely fastened in place;
    (iii) Walls that consist of 14-gauge, one-half (\1/2\) inch (1.3 
cm) expanded metal mesh, or an equivalent material;
    (iv) Walls that cover the full height of the personnel cage between 
the floor and the overhead covering;
    (v) A sloped roof constructed of one-eighth (\1/8\) inch (0.3 cm) 
aluminum, or an equivalent material; and
    (vi) Safe handholds (e.g., rope grips--but not rails or hard 
protrusions \7\) that accommodate each occupant.
---------------------------------------------------------------------------

    \7\ To reduce impact hazards should employees lose their balance 
because of cage movement.
---------------------------------------------------------------------------

    (b) Overhead weight. The applicants 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 applicants must/
would:
    (i) Ensure that the overhead weight is capable of preventing line 
run; and
    (ii) Use a means to restrain the movement of the overhead weight so 
that the weight does not interfere with safe personnel hoisting.
    (c) Gate. The applicants 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 applicants must/would post the 
procedures for operating the personnel cage conspicuously at the hoist 
operator's station.
    (e) Capacity. The applicants must/would:
    (i) Hoist no more than four (4) occupants in the cage at any one 
time; and
    (ii) Ensure that the rated load capacity of the cage is at least 
250 pounds (113.4 kg) for each occupant so hoisted.
    (f) Employee notification. The applicants must/would post a sign in 
each personnel cage notifying employees of the following conditions:
    (i) The standard rated load, as determined by the initial static 
drop test specified by Condition 10(g) (``Static drop tests'') below; 
and

[[Page 6008]]

    (ii) The reduced rated load for the specific job.
    (g) Static drop tests. The applicants must/would:
    (i) Conduct static drop tests of each personnel cage 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 applicants must/would:
    (i) Fit appropriately designed and constructed safety clamps to the 
guide ropes; and
    (ii) Ensure that the safety clamps do not damage the guide ropes 
when in use.
    (b) Attach to the personnel cage. The applicants must/would attach 
safety clamps to each personnel cage for gripping the guide ropes.
    (c) Operation. The applicants 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) 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 applicants must/would keep the safety-clamp 
assemblies clean and functional at all times.

12. Overhead Protection

    (a) The applicants must/would install a canopy or shield over the 
top of the personnel cage that is made of steel plate at least three-
sixteenth (\3/16\) of an inch (4.763 mm) thick, or material of 
equivalent strength and impact resistance, to protect employees (i.e., 
both inside and outside the chimney) from material and debris that may 
fall from above.
    (b) The applicants must/would ensure that the canopy or shield 
slopes to the outside of the personnel cage.\8\
---------------------------------------------------------------------------

    \8\ 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 applicants must/would provide an emergency-escape 
device in at least one of the following locations:
    (i) In the personnel cage, provided that the device is long enough 
to reach the bottom landing from the highest possible escape point; or
    (ii) At the bottom landing, provided that a means is available in 
the personnel cage for the occupants to raise the device to the highest 
possible escape point.
    (b) Operating instructions. The applicants must/would ensure that 
written instructions for operating the emergency-escape device are 
attached to the device.
    (c) Training. The applicants must/would instruct each employee who 
uses a personnel cage for transportation on how to operate the 
emergency-escape device:
    (i) Before the employee uses a personnel cage for transportation; 
and
    (ii) Periodically, and as necessary, thereafter.

14. Personnel Platforms and Fall-Protection Equipment

    (a) Personnel platforms. When the applicants elect to replace the 
personnel cage with a personnel platform in accordance with Condition 
2(a) above, 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 29 CFR 1926.451(a)(1).
    (b) Fall-protection equipment. Before employees use work platforms 
or boatswains' chairs, the applicants must/would:
    (i) Equip the employees with, and ensure that they use, full-body 
harnesses, lanyards, and lifelines as specified by 29 CFR 1926.104 and 
the applicable requirements of 29 CFR 1926.502(d); and
    (ii) Ensure that employees secure the lifelines to the top of the 
chimney and to a weight at the bottom of the chimney, and that the 
employees' lanyards are attached to the lifeline during the entire 
period of vertical transit.

15. Inspections, Tests, and Accident Prevention

    (a) The applicants must/would:
    (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 applicants must/would comply with the accident-prevention 
requirements of 29 CFR 1926.20(b)(3).

16. Welding

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

VII. Authority and Signature

    Edwin G. Foulke, Jr., 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 February 2, 2007.
Edwin G. Foulke, Jr.,
Assistant Secretary of Labor.
 [FR Doc. E7-2046 Filed 2-7-07; 8:45 am]
BILLING CODE 4510-26-P