Gibraltar Chimney International, LLC, Hoffmann, Inc., and Kiewit Power Constructors Co.: Grant of a Permanent Variance, 41742-41749 [E9-19741]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 74, Number 158 (Tuesday, August 18, 2009)]
[Notices]
[Pages 41742-41749]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-19741]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[OSHA-2007-0004 (Formerly V-06-01)]


Gibraltar Chimney International, LLC, Hoffmann, Inc., and Kiewit 
Power Constructors Co.: Grant of a Permanent Variance

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

ACTION: Notice of a grant of a permanent variance.

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SUMMARY: This notice announces the grant of a permanent variance to 
Gibraltar Chimney International, LLC, Hoffmann, Inc., and Kiewit Power 
Constructors Co. (``the employers''). The permanent variance addresses 
the provision that regulates the tackle used for boatswain's chairs (29 
CFR 1926.452 (o)(3)), as well as the provisions specified for personnel 
hoists by paragraphs (c)(1) through (c)(4), (c)(8), (c)(13), 
(c)(14)(i), and (c)(16) of 29 CFR 1926.552. Instead of complying with 
these provisions, the employers must comply with a number of 
alternative conditions listed in this grant; these alternative 
conditions regulate hoist systems used during inside or outside chimney 
construction to raise or lower workers in personnel cages, personnel 
platforms, and boatswain's chairs between the bottom landing of a 
chimney and an elevated work location. Accordingly, OSHA finds that 
these alternative conditions protect workers at least as well as the 
requirements specified by 29 CFR 1926.452(o)(3) and 1926.552(c)(1) 
through (c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16). This 
permanent variance applies in Federal OSHA enforcement jurisdictions, 
and in those States with OSHA-approved State-Plans covering private-
sector employers that have identical standards and have agreed to the 
terms of the variance.

DATES: The effective date of the permanent variance is August 18, 2009.

FOR FURTHER INFORMATION CONTACT: For information about this notice 
contact Ms. MaryAnn Garrahan, Director, Office of Technical Programs 
and Coordination Activities, Room N-3655, OSHA, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone 
(202) 693-2110; fax (202) 693-1644. For electronic copies of this 
notice, contact the Agency on its Webpage at https://www.osha.gov, and 
select ``Federal Register,'' ``Date of Publication,'' and then 
``2009.''
    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 Street, 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 
Street, SW., Room 6T50, Atlanta, GA 30303; telephone: (404) 562-2300; 
fax: (404) 562-2295.
U.S. Department of Labor, OSHA, 230 South Dearborn Street, Room 3244, 
Chicago, IL 60604; telephone: (312) 353-2220; fax: (312) 353-7774.
U.S. Department of Labor, OSHA, Two Pershing Square Building, 2300 Main 
Street, Suite 1010, Kansas City, MO, 64108-2416; telephone: (816) 283-
8745; fax: (816) 283-0547.
U.S. Department of Labor, OSHA, 525 Griffin Street, Suite 602, Dallas, 
TX 75202; telephone: (972) 850-4145; fax: (972) 850-4149.
U.S. Department of Labor, OSHA, 1999 Broadway, Suite 1690, Denver, CO 
80202; telephone: (720) 264-6550; fax: (720) 264-6585.
U.S. Department of Labor, OSHA, 90 7th Street, Suite 18100, San 
Francisco, CA 94103; telephone: (415) 625-2547; fax: (415) 625-2534.
U.S. Department of Labor, OSHA, 1111 Third Avenue, Suite 715, Seattle, 
WA 98101-3212; telephone: (206) 553-5930; fax: (206) 553-6499.

SUPPLEMENTARY INFORMATION:

I. Background

    In the past 35 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 boatswain's chairs (i.e., paragraph (o)(3) of 29 CFR 
1926.452), result in access problems that pose a serious danger to 
their workers. These companies requested permanent variances from these 
requirements, and proposed alternative equipment and procedures to 
protect workers while being transported to and from their elevated 
worksites during chimney construction and repair. The Agency

[[Page 41743]]

subsequently granted these companies permanent variances based on the 
proposed alternatives (see 38 FR 8545 (April 3, 1973), 44 FR 51352 
(August 31, 1979), 50 FR 20145 (May 14, 1985), 50 FR 40627 (October 4, 
1985), 52 FR 22552 (June 12, 1987), 68 FR 52961 (September 8, 2003), 70 
FR 72659 (December 6, 2005), and 71 FR 10557 (March 1, 2006)).\1\
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    \1\ Zurn Industries, Inc. received two permanent variances from 
OSHA. The first variance, granted on May 14, 1985 (50 FR 20145), 
addressed the boatswain's-chair provision (then in paragraph (l)(5) 
of 29 CFR 1926.451), as well as the hoist-platform requirements of 
paragraphs (c)(1), (c)(2), (c)(3), and (c)(14)(i) of 29 CFR 
1926.552. The second variance, granted on June 12, 1987 (52 FR 
22552), includes these same paragraphs, as well as paragraphs 
(c)(4), (c)(8), (c)(13), and (c)(16) of 29 CFR 1926.552.
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    Gibraltar Chimney International, LLC, Hoffmann, Inc., and Kiewit 
Power Constructors Co. (formerly, Kiewit Industrial Co.) applied for a 
permanent variance from the same personnel-hoist and boatswain's-chair 
requirements as the previous companies, and proposed as an alternative 
to these requirements the same equipment and procedures approved by 
OSHA in the earlier variances. The Agency published their variance 
applications in the Federal Register on February 8, 2007 (72 FR 6002).
    Gibraltar Chimney International, LLC, Hoffmann, Inc., and Kiewit 
Power Constructors Co. (``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 workers and 
construction material to and from elevated work platforms and scaffolds 
located, respectively, inside and outside tapered chimneys. While 
tapering contributes to the stability of a chimney, it necessitates 
frequent relocation of, and adjustments to, the work platforms and 
scaffolds so that they will fit the decreasing circumference of the 
chimney as construction progresses upwards.
    To transport workers to various heights inside and outside a 
chimney, the employers proposed in their variance applications to use a 
hoist system that lifts and lowers personnel-transport devices that 
include personnel cages, personnel platforms, or boatswain's chairs. In 
this regard, the employers proposed to use personnel cages, personnel 
platforms, or boatswain's chairs solely to transport workers with the 
tools and materials necessary to do their work, and not to transport 
only materials or tools on these devices in the absence of workers. In 
addition, the 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 a winding drum (also 
known as the hoist drum or rope drum) into the interior of the chimney; 
passes to a footblock that redirects the rope from the horizontal to 
the vertical planes; goes from the footblock through the overhead 
sheaves above the elevated platform; and finally drops to the bottom 
landing of the chimney where it connects to a personnel- or material-
transport device. The cathead, which is a superstructure at the top of 
the system, supports the overhead sheaves. The overhead sheaves (and 
the vertical span of the hoist system) move upward with the system as 
chimney construction progresses. Two guide cables, suspended from the 
cathead, eliminate swaying and rotation of the load. If the hoist rope 
breaks, safety clamps activate and grip the guide cables to prevent the 
load from falling. The 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 worker safety included:
     Attaching the wire rope to the personnel cage using a 
keyed-screwpin shackle or positive-locking link;
     Adding limit switches to the hoist system to prevent 
overtravel by the personnel- or material-transport devices;
     Providing the safety factors and other precautions 
required for personnel hoists specified by the pertinent provisions of 
29 CFR 1926.552(c), including canopies and shields to protect workers 
located in a personnel cage from material that may fall during hoisting 
and other overhead activities;
     Providing falling object protection for scaffold platforms 
as specified by 29 CFR 1926.451(h)(1);
     Conducting tests and inspections of the hoist system as 
required by 29 CFR 1926.20(b)(2) and 1926.552(c)(15);
     Establishing an accident prevention program that conforms 
to 29 CFR 1926.20(b)(3);
     Ensuring that workers who use a personnel platform or 
boatswain's 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 
boatswain's chair) to the rigging at the top of the chimney and to a 
weight at the bottom of the chimney to provide maximum stability to the 
lifelines.

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 boatswain's chair to transport workers to and 
from a bracket scaffold on the outside of an existing chimney during 
flue installation or repair work, or to transport them to and from an 
elevated scaffold located inside a chimney that has a small or tapering 
diameter. Paragraph (o)(3) of 29 CFR 1926.452, which regulates the 
tackle used to rig a boatswain's chair, states that this tackle must 
``consist of correct size ball bearings or bushed blocks containing 
safety hooks and properly `eye-spliced' minimum five-eighth (\5/8\) 
inch diameter first-grade manila rope [or equivalent rope].''
    The primary purpose of this paragraph is to allow a worker to 
safely control the ascent, descent, and stopping locations of the 
boatswain's chair. However, the 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 workers 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 boatswain's chair to lift 
workers to work locations. The proposed variance limited use of the 
boatswain's chair to elevations above the last work location that the 
personnel platform can reach; under these conditions, the employers 
proposed to attach the boatswain's chair directly to the hoisting cable 
only when the structural arrangement precludes the safe use of the 
block and tackle required by 29 CFR 1926.452(o)(3).

III. Proposed Variance From 29 CFR 1926.552(c)

    Paragraph (c) of 29 CFR 1926.552 specifies the requirements for 
enclosed hoisting systems used to transport workers from one elevation 
to another.

[[Page 41744]]

This paragraph ensures that employers transport workers safely to and 
from elevated work platforms by mechanical means during the 
construction, alteration, repair, maintenance, or demolition of 
structures such as chimneys. However, this standard does not provide 
specific safety requirements for hoisting workers to and from elevated 
work platforms and scaffolds in tapered chimneys; the tapered design 
requires frequent relocation of, and adjustment to, the work platforms 
and scaffolds. The space in a 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 workers to additional fall hazards because they need to install 
extra bridging and bracing to support a walkway between the hoist tower 
and the tapered chimney.
    Paragraph (c)(1) of 29 CFR 1926.552 requires 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 
workers to a serious fall hazard. Additionally, they noted that the 
requirement to extend the enclosures 10 feet above the outside 
scaffolds often exposes the workers involved in building these 
extensions to dangerous wind conditions.
    Paragraph (c)(2) of 29 CFR 1926.552 requires that employers enclose 
all four sides of a hoist tower even when the tower is located inside a 
chimney; the enclosure must extend the full height of the tower. In the 
proposed variance, the employers contended that it is hazardous for 
workers 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 
hoist system discussed in section I (``Background'') of this notice to 
transport workers 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 
workers 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

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

V. Multi-State Variance

    The variance applications stated that the employers perform chimney 
work in a number of geographic locations in the United States, some of 
which could include locations in one or more of the States and 
Territories that operate OSHA-approved safety and health programs under 
Section 18 of the Occupational Safety and Health Act of 1970 (``State-
Plan States and Territories''; see 29 U.S.C. 651 et seq.). State-Plan 
States and Territories have primary enforcement responsibility over the 
work performed in those States and Territories. Under the provisions of 
29 CFR 1952.9 (``Variances affecting multi-state employers'') and 29 
CFR 1905.14(b)(3) (``Actions on applications''), a permanent variance 
granted by the Agency becomes effective in State-Plan States and 
Territories as an authoritative interpretation of the applicants' 
compliance obligation when: (1) The relevant standards are the same as 
the Federal OSHA standards from which the applicants are seeking the 
permanent variance; and (2) the State-Plan State or Territory does not 
object to the terms of the variance application.
    As noted in the previous section of this notice (Section IV 
(``Comments on the Proposed Variance'')), OSHA received no comments on 
the variance application published in the Federal Register from any 
State-Plan State or Territory. However, several State-Plan States and 
Territories commented on earlier variance applications published in the 
Federal Register involving the same standards and submitted by other 
employers engaged in chimney construction and repair; OSHA is relying 
on these previous comments to determine the position of these State-
Plan States and Territories on the variance applications submitted by 
the present employers.\2\ The remaining paragraphs in this section 
provide a summary of the positions taken by the State-Plan States and 
Territories on the proposed alternative conditions.
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    \2\ See 68 FR 52961 (Oak Park Chimney Corp. and American Boiler 
& Chimney Co.), 70 FR 72659 (International Chimney Corporation, 
Karrena International, LLC, and Matrix Service Industrial 
Contractors, Inc.), and 71 FR 10557 (Commonwealth Dynamics, Inc., 
Mid-Atlantic Boiler & Chimney, Inc., and R and P Industrial Chimney 
Co., Inc.).
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    The following thirteen State-Plan States and one Territory have 
standards identical to the Federal OSHA standards and agreed to accept 
the alternative conditions: Alaska, Arizona, Indiana, Maryland, 
Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, 
Tennessee, Vermont, Virginia, and Wyoming. Of the remaining 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 workers and have no authority over 
the private sector workers addressed in this variance application 
(i.e., that authority continues to reside with Federal OSHA).
    Four States (Kentucky, Michigan, South Carolina, and Utah) accepted 
the proposed alternative when specific additional requirements are 
fulfilled. Kentucky noted that, while it agreed with the terms of the 
variance, Kentucky statutory law requires affected employers to apply 
to the State for a State variance. Michigan agreed to the alternative 
conditions, but noted that its standards are not identical to the OSHA 
standards covered by the variance application. Therefore, Michigan 
cautioned that employers electing to use the variance in that State 
must comply with several provisions in the Michigan standards that are 
not addressed in the OSHA standard. South Carolina indicated that it 
would accept the

[[Page 41745]]

alternative conditions, but noted that, for the grant of such a 
variance to be accepted by the South Carolina Commissioner of Labor, 
the employers must file the grant at the Commissioner's office in 
Columbia, South Carolina. Utah agreed to accept the Federal variance, 
but requires the employers to contact the Occupational Safety and 
Health Division, Labor Commission of Utah, regarding a procedural 
formality that must be completed before implementing the variance in 
that State.
    California, Hawaii, Iowa, and Washington either had different 
requirements in their standards or declined to accept the terms of the 
variance. Therefore, the employers must apply separately for a 
permanent variance from these four States.
    Based on the responses previously received from State-Plan States 
and Territories, the permanent Federal OSHA variance will be effective 
in the following thirteen State-Plan States and one Territory: Alaska, 
Arizona, Indiana, Maryland, Minnesota, Nevada, New Mexico, North 
Carolina, Oregon, Puerto Rico, Tennessee, Virginia, Vermont, and 
Wyoming; and in four additional states, Kentucky, Michigan, South 
Carolina, and Utah, when the employers meet specific additional 
requirements. However, this permanent variance does not apply in 
California, Hawaii, Iowa, and Washington State. As stated earlier, in 
the three States and one Territory (Connecticut, New Jersey, New York, 
and the Virgin Islands) that have State-Plan programs that cover only 
public sector workers, authority over the employers under the permanent 
variance continues to reside with Federal OSHA.

VI. Nonmandatory Conditions Added to the Permanent Variance

    After publishing the variance application of Gibraltar Chimney 
International, LLC, Hoffmann, Inc., and Kiewit Power Constructors Co. 
in the Federal Register, OSHA received additional variance applications 
from chimney construction companies. The Agency subsequently combined 
these applications and published them in the Federal Register (see 74 
FR 4237) after adding several conditions that it believes will increase 
worker protection at little additional cost or burden to the employers. 
These added conditions include a requirement for employers to install 
attachment points inside personnel cages for securing fall arrest 
systems, and to ensure that workers secure their fall arrest systems to 
these attachment points when using a personnel cage. The Agency 
believes this additional condition will protect workers from falling 
out of a cage in the event the door of the cage opens inadvertently 
during lifting operations.
    OSHA also added other conditions that it believes are necessary to 
protect workers from shearing or struck-by hazards associated with 
using hoist systems in chimney construction. Workers encounter these 
hazards when using personnel platforms or boatswain's chairs to 
transport them to or from an elevated jobsite. During transport, these 
personnel transport devices pass near structures, including work 
platforms and scaffolds, that could crush or inflict other serious 
injury on a hand, arm, foot, leg, or other body part that extends 
beyond the confines of the personnel transport device. To prevent these 
injuries, OSHA added a condition to the variance applications that 
would require employers to instruct workers who use personnel platforms 
or boatswain's chairs to recognize the shearing and struck-by hazards 
associated with personnel-transport operations, and how to avoid these 
hazards. Additionally, the condition would require employers to attach 
to the personnel platforms and boatswain's chairs, a readily visible 
warning of the hazards; this warning will supplement and reinforce the 
hazard training by reminding workers of the hazards and how to avoid 
them.
    To address another struck-by hazard, OSHA added a condition that 
would require employers to establish a safety zone around the bottom 
landing where workers access personnel- and material-transport devices. 
The employers would have to ensure that workers enter the safety zone 
only to access a transport device that is in the area circumscribed by 
the safety zone, and only when the hoist system is not in operation. 
OSHA believes that this condition will prevent a transport device that 
is descending from an elevated jobsite from striking a worker who is in 
or near the bottom-landing area and is not aware of the descending 
device. During descent, it also is difficult for workers in or on these 
devices to detect a worker beneath them. Therefore, it would be 
necessary for the employers to establish a safety zone and ensure that 
workers only enter the safety zone when a transport device is at the 
bottom landing and not in operation (i.e., the drive components of the 
hoist system are disengaged and the braking mechanism is properly 
applied).
    OSHA also added another condition that would require employers to 
notify (1) the nearest OSHA Area Office, or appropriate State-Plan 
Office, at least 15 days before commencing chimney construction 
operations covered by the variance, and (2) OSHA national headquarters 
as soon as an employer knows that it will cease doing business or 
transfers the activities covered by the variance to another company. 
These administrative requirements would enable OSHA to more easily 
enforce, and determine the status of, the variance than is presently 
the case. Currently, OSHA has little or no information about chimney 
construction activities conducted under a variance, making it difficult 
for it to assess compliance with the conditions specified under the 
variance. Additionally, OSHA finds that construction companies cease 
operations or transfer chimney construction assets to successor 
companies without informing the Agency that the variance is no longer 
needed, or requesting that OSHA reassign the variance to the successor 
company. The Agency believes that these notification requirements will 
improve administrative oversight of the variance program, thereby 
enhancing worker safety and reducing its administrative burden.
    OSHA specifies these additional conditions in Appendix A of the 
order (see Section VIII (``Order''), below). As the employers, workers, 
and other members of the regulated community did not have an 
opportunity to comment on these conditions, OSHA considers these 
conditions to be nonmandatory, and not enforceable under the order. 
However, as noted in the previous paragraphs of this section, OSHA 
believes that these conditions will increase the protection afforded to 
workers under the permanent variance, and will do so at little 
additional cost or burden to employers. Therefore, OSHA strongly 
encourages the employers to implement these additional conditions. In 
this regard, OSHA will propose in the near future to revise permanent 
variances issued earlier (i.e., prior to 2009) for chimney construction 
to include these additional conditions.

VII. Decision

    Gibraltar Chimney International, LLC, Hoffmann, Inc., and Kiewit 
Power Constructors Co. seek a permanent variance from the provision 
that regulates the tackle used for boatswain's chairs (29 CFR 
1926.452(o)(3)), as well as the provisions specified for personnel 
hoists by paragraphs (c)(1) through (c)(4), (c)(8), (c)(13), 
(c)(14)(i), and (c)(16) of 29 CFR 1926.552. Paragraph (o)(3) of 29 CFR 
1926.452 states that the tackle used for boatswain's chairs must 
``consist of correct size ball bearings or bushed blocks containing 
safety hooks and properly `eye-spliced' minimum

[[Page 41746]]

five-eighth (\5/8\) inch diameter first-grade manila rope [or 
equivalent rope].'' The primary purpose of this provision is to allow a 
worker to safely control the ascent, descent, and stopping locations of 
the boatswain's chair. The proposed alternative to these requirements 
allows the employer to use a boatswain's chair to lift workers to work 
locations inside and outside a chimney when both a personnel cage and a 
personnel platform are infeasible. The employers proposed to attach the 
boatswain's 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 
workers safely to and from elevated work platforms by mechanical means 
during construction work involving structures such as chimneys. In this 
regard, paragraph (c)(1) of 29 CFR 1926.552 requires employers to 
enclose hoist towers located outside a chimney on the side or sides 
used for entrance to, and exit from, the structure; these enclosures 
must extend the full height of the hoist tower. Under the requirements 
of paragraph (c)(2) of 29 CFR 1926.552, employers must enclose all four 
sides of a hoist tower located inside a chimney; these enclosures also 
must extend the full height of the tower.
    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 hoist 
system to transport workers to and from elevated work locations inside 
and outside chimneys. The proposed hoist system includes a hoist 
machine, cage, safety cables, and safety measures such as limit 
switches to prevent overrun of the cage at the top and bottom landings, 
and safety clamps that grip the safety cables if the main hoist line 
fails. To transport workers to and from elevated work locations, the 
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 
workers, they have proposed to use a boatswain's 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., paragraphs (c)(3), (c)(4), (c)(8), 
(c)(13), (c)(14)(i), and (c)(16)).
    Under Section 6(d) of the Occupational Safety and Health Act of 
1970 (29 U.S.C. 655), and based on the record discussed above, the 
Agency finds that when the employers comply with the conditions of the 
following order, the working conditions of their workers will be at 
least as safe and healthful as if the employers complied with the 
working conditions specified by paragraph (o)(3) of 29 CFR 1926.452, 
and paragraphs (c)(1) through (c)(4), (c)(8), (c)(13), (c)(14)(i), and 
(c)(16) of 29 CFR 1926.552. This decision is applicable in all States 
under Federal OSHA enforcement jurisdiction, and in the 14 State-Plan 
States with standards identical to the Federal standards (Alaska, 
Arizona, Indiana, Maryland, Minnesota, Nevada, New Mexico, North 
Carolina, Oregon, Puerto Rico, Tennessee, Virginia, Vermont, and 
Wyoming). In Kentucky, Michigan, South Carolina and Utah, the employers 
must meet additional conditions before this variance will apply in 
those States. This decision does not apply in California, Hawaii, Iowa, 
and Washington.

VIII. Order

    OSHA issues this order authorizing Gibraltar Chimney International, 
LLC, Hoffmann, Inc., and Kiewit Power Constructors Co. (``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. This order applies in Federal OSHA enforcement 
jurisdictions, and in those States with OSHA-approved State plans that 
have identical standards and have agreed to the terms of the variance.

1. Scope of the Permanent Variance

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

    (a) Personnel platform. When the employers demonstrate that 
available space makes a personnel cage for transporting workers 
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) Boatswain's chair. Employers must:
    (i) Before using a boatswain's chair, demonstrate that available 
space makes it infeasible to use a personnel platform for transporting 
workers;
    (ii) Limit use of a boatswain's chair to elevations above the last 
work location that the personnel platform can reach; and
    (iii) Use a boatswain's chair in accordance with 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 workers.
    (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.

[[Page 41747]]

    (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, boatswain's chair, hopper, 
concrete bucket) using the hoist system:
    (A) The drive components are engaged continuously when an empty or 
occupied transport is being lowered (i.e., no ``freewheeling'');
    (B) The drive system is interconnected, on a continuous basis, 
through a torque converter, mechanical coupling, or an equivalent 
coupling (e.g., electronic controller, fluid clutches, hydraulic 
drives).
    (C) The braking mechanism is applied automatically when the 
transmission is in the neutral position and a forward-reverse coupling 
or shifting transmission is being used; and
    (D) No belts are used between the power source and the winding 
drum.
    (c) Power source. The 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 
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 diameter of the winding drum.
    (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, boatswain's chair, 
or material-transport device at the top of the supporting structure and 
at the bottom of the hoistway or lowest landing level.

5. Methods of Operation

    (a) Worker qualifications and training. The employers must:
    (i) Ensure that only trained and experienced workers, who are 
knowledgeable of hoist-system operations, control the hoist machine; 
and
    (ii) Provide instruction, periodically and as necessary, on how to 
operate the hoist system, to each worker who uses a personnel cage for 
transportation.
    (b) Speed limitations. The 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 workers;
    (ii) One hundred (100) feet (30.5 m) per minute when a personnel 
platform or boatswain's chair is being used to transport workers; or
    (iii) A line speed that is consistent with the design limitations 
of the system when only material is being hoisted.
    (c) Communication. The employers must:
    (i) Use a voice-mediated intercommunication system to maintain 
communication between the hoist operator and the workers located in or 
on a moving personnel cage, personnel platform, or boatswain's chair;
    (ii) Stop hoisting if, for any reason, the communication system 
fails to operate effectively; and
    (iii) Resume hoisting only when the site superintendent determines 
that it is safe to do so.

6. Hoist Rope

    (a) Grade. The 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 boatswain's 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

[[Page 41748]]

    (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:
    (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 workers 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 the 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) Worker notification. The employers must post a sign in each 
personnel cage notifying workers of the following conditions:
    (i) The standard rated load, as determined by the initial static 
drop test specified by Condition 10(g) (``Static drop tests''), below; 
and
    (ii) The reduced rated load for the specific job.
    (g) Static drop tests. The 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 workers only 
when no damage occurred to the components of the cage as a result of 
the static drop tests.

11. Safety Clamps

    (a) Fit to the guide ropes. The 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-
sixteenths (\3/16\) of an inch (4.763 mm) thick, or material of 
equivalent strength and impact

[[Page 41749]]

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

14. Personnel Platforms

    (a) Personnel platforms. When the 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 workers use work platforms or 
boatswains' chairs, the employers must:
    (i) Equip the workers 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 workers secure the lifelines to the top of the 
chimney and to a weight at the bottom of the chimney, and that the 
workers' 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 1926, 
subpart J (``Welding and Cutting'').

APPENDIX A

Nonmandatory Conditions When Performing Chimney Construction Using 
Hoist Systems

    OSHA strongly encourages the employers to implement the 
following additional conditions under this order:
    1. Fall hazards. The employers should install attachment points 
inside personnel cages for securing fall-arrest systems, and ensure 
that workers using personnel cages secure their fall-arrest systems 
to these attachment points.
    2. Shearing hazards. The employers should:
    (a) Provide workers who use personnel platforms or boatswain's 
chairs with instruction on the shearing hazards posed by the hoist 
system (e.g., work platforms, scaffolds), and the need to keep their 
limbs or other body parts clear of these hazards during hoisting 
operations;
    (b) Provide the instruction on shearing hazards:
    (i) Before a worker uses a personnel platform or boatswain's 
chair at the worksite; and
    (ii) Periodically, and as necessary, thereafter, including 
whenever a worker demonstrates a lack of knowledge about the hazard 
or how to avoid the hazard, a modification occurs to an existing 
shearing hazard, or a new shearing hazard develops at the worksite; 
and
    (c) Attach a readily visible warning to each personnel platform 
and boatswain's chair notifying workers, in a language the workers 
understand, of potential shearing hazards they may encounter during 
hoisting operations, and that uses the following (or equivalent) 
wording:
    (i) For personnel platforms: ``Warning--To avoid serious injury, 
keep your hands, arms, feet, legs, and other parts of your body 
inside this platform while it is in motion''; and
    (ii) For boatswain's chairs: ``Warning--To avoid serious injury, 
do not extend your hands, arms, feet, legs, or other parts of your 
body from the side or to the front of this chair while it is in 
motion.''
    3. Safety zone. The employers should:
    (a) Establish a clearly designated safety zone around the bottom 
landing of the hoist system; and
    (b) Prohibit any worker from entering the safety zone except to 
access a personnel- or material-transport device, and then only when 
the device is at the bottom landing and not in operation (i.e., when 
the drive components of the hoist machine are disengaged and the 
braking mechanism is properly applied).
    4. OSHA notification. The employers should:
    (a) At least 15 calendar days prior to commencing any chimney 
construction operation using the conditions specified herein, notify 
the OSHA Area Office nearest to the worksite, or the appropriate 
State-Plan Office, of the operation, including the location of the 
operation and the date the operation will commence;
    (b) Inform OSHA national headquarters as soon as it has 
knowledge that it will:
    (i) Cease to do business; or
    (ii) Transfer the activities covered by this permanent variance 
to a successor company.

IX. Authority and Signature

    Jordan Barab, 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. OSHA is 
issuing this notice under the authority specified by Section 6(d) of 
the Occupational Safety and Health Act of 1970 (29 U.S.C. 655), 
Secretary of Labor's Order No. 5-2007 (72 FR 31160), and 29 CFR part 
1905.

    Signed at Washington, DC, on August 11th, 2009.
Jordan Barab,
Acting Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. E9-19741 Filed 8-17-09; 8:45 am]
BILLING CODE 4510-26-P