[Federal Register: March 1, 2006 (Volume 71, Number 40)][Notices] [Page 10557-10565]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01mr06-115]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
[V-04-1]
Commonwealth Dynamics, Inc., Mid-Atlantic Boiler & Chimney,
Inc.,\1\ and R and P Industrial Chimney Co., Inc.; Grant of a Permanent
Variance
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\1\ Designated as Alberici Mid-Atlantic, LLC ("Alberici") on
the notice of an application for a permanent variance and interim
order published at 69 FR 48754. Mid-Atlantic Boiler & Chimney, Inc.
("MAB&C") has acquired Alberici's chimney-construction assets,
including equipment, contracts, and employees. Prior to this
acquisition, Alberici notified employees who were being transferred
to MAB&C that it has requested OSHA to transfer its interest in the
variance application and interim order to MAB&C. In addition, an
authorized representative for MAB&C certified that MAB&C agrees to
comply with the grant of an interim order published at 69 FR 48754,
and to comply with the conditions of the variance grant resulting
from the variance application. (See Ex. 5-19.)
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AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Notice of a grant of a permanent variance.
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SUMMARY: This notice announces the grant of a permanent variance to
Commonwealth Dynamics, Inc., Mid-Atlantic Boiler & Chimney, Inc., and R
and P Industrial Chimney Co., Inc. ("the employers"). The permanent
variance addresses the provision that regulates the tackle used for
boatswains' chairs (29 CFR 1926.452 (o)(3)), as well as the provisions
specified for personnel hoists by paragraphs (c)(1) through (c)(4),
(c)(8), (c)(13), (c)(14)(i), and (c)(16) of 29 CFR 1926.552. Instead of
complying with these provisions, the employers must comply with a
number of alternative conditions listed in this grant; these
alternative conditions regulate rope-guided personnel-hoisting systems
used during inside or outside chimney construction to raise or lower
employees in personnel cages, personnel platforms, and boatswains'
chairs between the bottom landing of a chimney and an elevated work
location. Accordingly, OSHA finds that these alternative conditions
protect employees at least as well as the requirements specified by 29
CFR 1926.452(o)(3) and 1926.552(c)(1) through (c)(4), (c)(8), (c)(13),
(c)(14)(i), and (c)(16).
DATES: The effective date of the permanent variance is March 1, 2006.
FOR FURTHER INFORMATION: For information about this notice contact Ms.
MaryAnn S. Garrahan, Director, Office of Technical Programs and
Coordination Activities, Room N-3655, OSHA, U.S. Department of Labor,
200 Constitution Avenue, NW., Washington, DC 20210; telephone (202)
693-2110; fax (202) 693-1644. You may obtain additional copies of this
notice from the Office of Publications, Room N-3101, OSHA, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210; telephone (202) 693-1888. For electronic copies of this notice,
contact the Agency on its Web page at http://ww.osha.gov, and select
"Federal Register," "Date of Publication," and then "2005."
Additional information also is available from the following OSHA
Regional Offices:
U.S. Department of Labor, OSHA, JFK Federal Building, Room E340,
Boston, MA 02203, telephone: (617) 565-9860, fax: (617) 565-9827.
U.S. Department of Labor, OSHA, 201 Varick St., Room 670, New York, NY
10014, telephone: (212) 337-2378, fax: (212) 337-2371.
U.S. Department of Labor, OSHA, the Curtis Center, Suite 740 West, 170
South Independence Mall West, Philadelphia, PA 19106-3309, telephone:
(215) 861-4900, fax: (215) 861-4904.
U.S. Department of Labor, OSHA, Atlanta Federal Center, 61 Forsyth St.,
SW., Room 6T50, Atlanta, GA 30303, telephone: (404) 562-2300, fax:
(404) 562-2295.
U.S. Department of Labor, OSHA, 230 South Dearborn St., Room 3244,
Chicago, IL 60604, telephone: (312) 353-2220, fax: (312) 353-7774.
U.S. Department of Labor, OSHA, City Center Square, 1100 Main St.,
Suite 800, Kansas City, MO 64105, telephone: (816) 426-5861, fax: (816)
426-2750.
U.S. Department of Labor, OSHA, 525 Griffin St., Room 602, Dallas, TX
75202, telephone: (214) 767-4731/-4736 (ext. 224), fax: (214) 767-4693/
-4188.
U.S. Department of Labor, OSHA, 1999 Broadway, Suite 1690, P.O. Box
46550, Denver, CO 80201-6550, telephone: (720) 264-6550, fax: (720)
264-6585.
U.S. Department of Labor, OSHA, 71 Stevenson St., Room 420, San
Francisco, CA 94105, telephone: (415) 975-4310, fax: (415) 744-4319.
U.S. Department of Labor, OSHA, 1111 Third Ave., Suite 715, Seattle, WA
98101-3212, telephone: (206) 553-5930, fax: (206) 553-6499.
SUPPLEMENTARY INFORMATION:
I. Background
In the past 30 years, a number of chimney-construction companies
have demonstrated to OSHA that several personnel-hoist requirements
(i.e., paragraphs (c)(1), (c)(2), (c)(3), (c)(4), (c)(8), (c)(13),
(c)(14)(i), and (c)(16) of 29 CFR 1926.552), as well as the tackle
requirements for boatswains' chairs (i.e., paragraph (o)(3) of 29 CFR
1926.452), result in access problems that pose a serious danger to
their employees. These companies requested permanent variances from
these requirements, and proposed alternative equipment and procedures
to protect employees while being transported to and from their elevated
worksites during chimney construction and repair. The Agency
subsequently granted these companies permanent variances based on the
proposed alternatives (see 38 FR 8545 (April 3, 1973), 44 FR 51352
(August 31, 1979), 50 FR 40627 (October 4, 1985), 52 FR 22552 (June 12,
1987), and 68 FR 52961 (September 8, 2003)).\2\
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\2\ Zurn Industries, Inc. received two permanent variances from
OSHA. The first variance, granted on May 14, 1985 (50 FR 20145),
addressed the boatswains'-chair provision (then in paragaph (l)(5)
of 29 CFR 1926.451), as well as the hoist-platform requirements of
paragraphs (c)(1), (c)(2), (c)(3), and (c)(14)(i) of 29 CFR
1926.552. The second variance, granted on June 12, 1987 (52 FR
22552), includes these same paragraphs, as well as paragraphs
(c)(4), (c)(8), (c)(13), and (c)(16) of 29 CFR 1926.552.
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On October 27, 2003, January 20, 2004, and March 16, 2004,
Commonwealth Dynamics, Inc., R and P Industrial Chimney Co., Inc., and
Mid-Atlantic Boiler & Chimney, Inc., respectively, applied for a
permanent variance from the same personnel-hoist and boatswains'-chair
requirements as the previous companies, and proposed as an alternative
to these requirements the same equipment and procedures approved by
OSHA in the earlier variances. The Agency published their variance
application in the Federal Register on August 10, 2004 (69 FR 48754).
OSHA received no hearing requests in response to these Federal Register
notices. However, a private individual and a number of States and
Territories having OSHA-approved safety and health programs ("State-
Plan States and Territories") submitted comments on the proposed
alternative. In addition, several other State-Plan States and
Territories have commented on an earlier variance application involving
the same standards submitted by other employers engaged in chimney
construction and repair;\3\ OSHA is relying on these previous comments
to determine the position of these State-Plan States and Territories on
the variance application submitted by the present employers. (See
sections IV ("Comments on the Proposed Variance") and V ("Multi-
State Variance") below for a discussion of these comments.)
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\3\ The previous variance application was from American Boiler
and Chimney Co. and Oak Park Chimney Corp. (68 FR 52961, September
8, 2003).
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Commonwealth Dynamics, Inc., Mid-Atlantic Boiler & Chimney, Inc.,
and R and P Industrial Chimney Co., Inc. ("the employers") construct,
remodel, repair, maintain, inspect, and demolish tall chimneys made of
reinforced concrete, brick, and steel. This work, which occurs
throughout the United States, requires the employers to transport
employees and construction material to and from elevated work platforms
and scaffolds located, respectively, inside and outside tapered
chimneys. While tapering contributes to the stability of a chimney, it
necessitates frequent relocation of, and adjustments to, the
work platforms and scaffolds so that they will fit the decreasing
circumference of the chimney as construction progresses upwards.
To transport employees to various heights inside and outside a
chimney, the employers proposed in their variance application to use a
hoist system that lifts and lowers personnel-transport devices that
include personnel cages, personnel platforms, or boatswains' chairs. In
this regard, the employers proposed to use personnel cages, personnel
platforms, or boatswains' chairs solely to transport employees with the
tools and materials necessary to do their work, and not to transport
only materials or tools on these devices in the absence of employees.
In addition, the employers proposed to attach a hopper or concrete
bucket to the hoist system to raise or lower material inside or outside
a chimney.
The employers also proposed to use a hoist engine, located and
controlled outside the chimney, to power the hoist system. The proposed
system consisted of a wire rope that: spools off the winding drum (also
known as the hoist drum or rope drum) into the interior of the chimney;
passes to a footblock that redirects the rope from the horizontal to
the vertical planes; goes from the footblock through the overhead
sheaves above the elevated platform; and finally drops to the bottom
landing of the chimney where it connects to a personnel- or material-
transport device. The cathead, which is a superstructure at the top of
a derrick, supports the overhead sheaves. The overhead sheaves (and the
vertical span of the hoist system) move upward with the derrick as
chimney construction progresses. Two guide cables, suspended from the
cathead, eliminate swaying and rotation of the load. If the hoist rope
breaks, safety clamps activate and grip the guide cables to prevent the
load from falling. The employers proposed to use a headache ball,
located on the hoist rope directly above the load, to counterbalance
the rope's weight between the cathead sheaves and the footblock.
Additional conditions that the employers proposed to follow to
improve employee safety included:
Attaching the wire rope to the personnel cage using a
keyed-screwpin shackle or positive-locking link;
Adding limit switches to the hoist system to prevent
overtravel by the personnel-or material-transport devices;
Providing the safety factors and other precautions
required for personnel hoists specified by the pertinent provisions of
29 CFR 1926.552(c), including canopies and shields to protect employees
located in a personnel cage from material that may fall during hoisting
and other overhead activities;
Providing falling-object protection for scaffold platforms
as specified by 29 CFR 1926.451(h)(1);
Conducting tests and inspections of the hoist system as
required by 29 CFR 1926.20(b)(2) and 1926.552(c)(15);
Establishing an accident-prevention program that conforms
to 29 CFR 1926.20(b)(3);
Ensuring that employees who use a personnel platform or
boatswains' chair wear full-body harnesses and lanyards, and that the
lanyards are attached to the lifelines during the entire period of
vertical transit; and
Securing the lifelines (used with a personnel platform or
boatswains' chair) to the rigging at the top of the chimney and to a
weight at the bottom of the chimney to provide maximum stability to the
lifelines.
II. Proposed Variance From 29 CFR 1926.452(o)(3)
The employers noted in their variance request that it is necessary,
on occasion, to use a boatswains' chair to transport employees to and
from a bracket scaffold on the outside of an existing chimney during
flue installation or repair work, or to transport them to and from an
elevated scaffold located inside a chimney that has a small or tapering
diameter. Paragraph (o)(3) of 29 CFR 1926.452, which regulates the
tackle used to rig a boatswains' chair, states that this tackle must
"consist of correct size ball bearings or bushed blocks containing
safety hooks and properly 'eye-spliced' minimum five-eighth (5/8) inch
diameter first-grade manila rope [or equivalent rope]."
The primary purpose of this paragraph is to allow an employee to
safely control the ascent, descent, and stopping locations of the
boatswains' chair. However, the employers stated in their variance
request that, because of space limitations, the required tackle is
difficult or impossible to operate on some chimneys that are over 200
feet tall. Therefore, as an alternative to complying with the tackle
requirements specified by 29 CFR 1926.452(o)(3), the employers proposed
to use the hoisting system described above in section I
("Background") of this notice to raise or lower employees in a
personnel cage to work locations both inside and outside a chimney. In
addition, the employers proposed to use a personnel cage for this
purpose to the extent that adequate space is available, and to use a
personnel platform when using a personnel cage was infeasible because
of limited space. When available space makes using a personnel platform
infeasible, the employers proposed to use a boatswains' chair to lift
employees to work locations. The proposed variance limited use of the
boatswains' chair to elevations above the last work location that the
personnel platform can reach; under these conditions, the employers
proposed to attach the boatswains' chair directly to the hoisting cable
only when the structural arrangement precludes the safe use of the
block and tackle required by 29 CFR 1926.452(o)(3).
III. Proposed Variance from 29 CFR 1926.552(c)
Paragraph (c) of 29 CFR 1926.552 specifies the requirements for
enclosed hoisting systems used to transport employees from one
elevation to another. This paragraph ensures that employers transport
employees safely to and from elevated work platforms by mechanical
means during the construction, alteration, repair, maintenance, or
demolition of structures such as chimneys. However, this standard does
not provide specific safety requirements for hoisting employees to and
from elevated work platforms and scaffolds in tapered chimneys; the
tapered design requires frequent relocation of, and adjustment to, the
work platforms and scaffolds. The space in a small-diameter or tapered
chimney is not large enough or configured so that it can accommodate an
enclosed hoist tower. Moreover, using an enclosed hoist tower for
outside operations exposes employees to additional fall hazards because
they need to install extra bridging and bracing to support a walkway
between the hoist tower and the tapered chimney.
Paragraph (c)(1) of 29 CFR 1926.552 requires the employers to
enclose hoist towers located outside a chimney on the side or sides
used for entrance to, and exit from, the chimney; these enclosures must
extend the full height of the hoist tower. The employers asserted in
their proposed variance that it is impractical and hazardous to locate
a hoist tower outside tapered chimneys because it becomes increasingly
difficult, as a chimney rises, to erect, guy, and brace a hoist tower;
under these conditions, access from the hoist tower to the chimney or
to the movable scaffolds used in constructing the chimney exposes
employees to a serious fall hazard. Additionally, they noted that the
requirement to extend the enclosures 10 feet above the outside
scaffolds often exposes the employees involved in building these extensions
to dangerous wind conditions.
Paragraph (c)(2) of 29 CFR 1926.552 requires that employers enclose
all four sides of a hoist tower even when the tower is located inside a
chimney; the enclosure must extend the full height of the tower. In the
proposed variance, the employers contended that it is hazardous for
employees to erect and brace a hoist tower inside a chimney, especially
small-diameter or tapered chimneys or chimneys with sublevels, because
these structures have limited space and cannot accommodate hoist
towers; space limitations result from chimney design (e.g., tapering),
as well as reinforced steel projecting into the chimney from formwork
that is near the work location.
As an alternative to complying with the hoist-tower requirements of
29 CFR 1926.552(c)(1) and (c)(2), the employers proposed to use the
rope-guided hoist system discussed in section I ("Background") of
this notice to transport employees to and from work locations inside
and outside chimneys. They claimed that this hoist system would make it
unnecessary for them to comply with other provisions of 29 CFR
1926.552(c) that specify requirements for hoist towers, including:
(c)(3)--Anchoring the hoist tower to a structure;
(c)(4)--Hoistway doors or gates;
(c)(8)--Electrically interlocking entrance doors or gates
that prevent hoist movement when the doors or gates are open;
(c)(13)--Emergency stop switch located in the car;
(c)(14)(i)--Using a minimum of two wire ropes for drum-
type hoisting; and
(c)(16)--Construction specifications for personnel hoists,
including materials, assembly, structural integrity, and safety
devices.
The employers asserted that the proposed hoisting system protected
employees at least as effectively as the personnel-hoist requirements
of 29 CFR 1926.552(c). The following section of this preamble reviews
the comments received on the employers' proposed variance.
IV. Comments on the Proposed Variance
The only comment from the private sector regarding the proposed
variance was submitted by Mr. Bradley Glosson of MACB Technical
Services (Ex. 4-1). Mr. Glosson recommended adopting American National
Safety Standard ASME B30.23 ("Personnel Lifting Systems"), stating:
Any variance approved should be based upon a uniform, nationally
endorsed and professionally established set of criteria for the safe
design and operational issues. Review and consideration of the B30.3
Standard, and the President[i]al Order to use existing National
Standards wherever feasible, should be undertaken prior to issuance
of this variance.
In response to this comment, the Agency notes that the employer
seeking a permanent variance proposes the alternative conditions in the
variance request. The Agency's responsibility under section (6)(d) of
the Occupational Safety and Health Act of 1970 is to determine "by a
preponderance of the evidence that the conditions, practices, means,
methods, operations, or processes used or proposed to be used * * *
will provide employment and places of employment to [their] employees
which are as safe and healthful as those which would prevail if [they]
complied with the standard." (See 29 U.S.C. 655.) Therefore,
employers, not the Agency, determine what will be proposed as an
alternative to an OSHA standard.
The "Presidential Order" to which Mr. Glosson refers is most
likely Office of Management and Budget (OMB) Circular A-119 ("Federal
Participation in the Development and Use of Voluntary Consensus
Standards and in Conformity Assessment Activities"), the most recent
edition of which was published by OMB on August 19, 2002. The Circular
does not refer to variances. Variances are applied narrowly (only to
the employers that request them) and typically involve only a few
provisions of a standard. As explained above, OSHA's obligation to
issue variances is set forth in Section 6(d) of the OSH Act; the
granting of these permanent variances is in accord with OSHA's
statutory responsibilities.
OSHA also received comments from 17 of the 26 States and
Territories that operate occupational safety and health State plans
approved under section 18 of the Occupational Safety and Health Act of
1970 (i.e., "State-Plan States"; 29 U.S.C. 667). The Agency received
these 17 comments after it sent each of these 26 States and Territories
a copy of the application and requested that they provide information
on whether their standards (the ones that would be affected by the
proposed variance) were identical to the corresponding Federal OSHA
standards, and, if so, did they agree to accept the alternative
conditions proposed by the employers.
None of the 17 State-Plan States and Territories that submitted
comments provided substantive remarks regarding the conditions proposed
in the variance application. Ten of these 17 State-Plan States and
Territories reported that they have standards that are identical to the
Federal OSHA standards, and that they agreed to accept the proposed
alternative. These 10 State-Plan States and one Territory are: Arizona,
Indiana, Maryland, Minnesota, North Carolina, Oregon, Puerto Rico,
Tennessee, Virginia, and Wyoming (Exs. 5-1, 5-3-1, 5-16, 5-14, , 5-11,
5-10, 5-9, 5-7, 5-6, and 5-5, respectively). Three of the State-Plan
States (Kentucky, Michigan, and South Carolina) agreed with the
proposed alternative, but did so conditionally. Kentucky (Ex. 5-4)
noted that, while it agreed with the terms of the variance, Kentucky
statutory law requires affected employers to apply to the State for a
State variance. Michigan (Ex. 5-15) agreed to the alternative
conditions, but noted that its standards are not identical to the OSHA
standards covered by the variance application. Therefore, Michigan
cautioned that employers electing to use the variance in that State
must comply with several provisions in the Michigan standards that are
not addressed in the OSHA standard. South Carolina (Ex. 5-8) indicated
that it would accept the alternative conditions, but noted that, for
the grant of such a variance to be accepted by the South Carolina
Commissioner of Labor, the employers must file the grant at the
Commissioner's office in Columbia, South Carolina.
Three State-Plan States (Connecticut (Ex. 5-2), New Jersey (Ex. 5-
13), and New York (Ex. 5-12)) have OSHA-approved safety and health
programs that cover only public-sector (i.e., State and local
government) employment. While OSHA received no comment from the Virgin
Islands, its State-Plan program also covers only public-sector
employment. Therefore, in these State-Plan States and one Territory,
the authority to cover private-sector employers under the variance
continues to reside with Federal OSHA.
Washington State (Ex. 5-17) could not agree to the alternative
conditions because its applicable standards were not identical to the
OSHA standards. Therefore, the employers must apply separately for a
permanent variance from Washington State.
In response to a previous application by chimney-construction
companies for an identical variance (see footnote 3), four State-Plan
States (Alaska, Nevada, New Mexico, and Vermont) indicated that their
standards were the same as the Federal OSHA standards, and agreed to
the terms of the variance. Utah agreed to accept the Federal variance,
but requires the employers to contact the Occupational Safety and
Health Division, Labor Commission of Utah, regarding a procedural formality
that must be completed before implementing the variance in that State.
California, Iowa, and Hawaii have standards that either differ from the
Federal standards or did not agree to the alternative conditions proposed
in the variance application, and would not permit the employers to implement
in their States any variance resulting from the application without further
application to the State.
V. Multi-State Variance
The variance application stated that the employers perform chimney
work in a number of geographic locations in the United States, some of
which could include locations in one or more of the States and
Territories that operate OSHA-approved safety and health programs under
section 18 of the Occupational Safety and Health Act of 1970 ("State-
Plan States and Territories"; see 29 U.S.C. 651 et seq.). State-Plan
States and Territories have primary enforcement responsibility over the
work performed in those States and Territories. Under the provisions of
29 CFR 1952.9 ("Variances affecting multi-state employers") and 29
CFR 1905.14(b)(3) ("Actions on applications"), a permanent variance
granted by the Agency becomes effective in State-Plan States and
Territories as an authoritative interpretation of the applicants'
compliance obligation when: (1) The relevant standards are the same as
the Federal OSHA standards from which the applicants are seeking the
permanent variance; and (2) the State-Plan State or Territory does not
object to the terms of variance application.
OSHA requested comments on this application from each of the State-
Plan States and Territories. The Agency noted in its request that,
absent any comment, it would assume that the State or Territory's
position regarding this variance application was the same as the
position it took on a previous variance application (see footnote 3).
As noted under the previous section, several State-Plan States and
Territories did not submit comments on this variance application,
indicating that they continue to maintain their previous positions
regarding the alternative conditions proposed under this variance
application. The following paragraph provides a summary of the
positions taken by the State-Plan States and Territories on the
proposed alternative conditions.
The following thirteen State-Plan States and one Territory have
identical standards and agreed to accept the alternative conditions:
Alaska, Arizona, Indiana, Maryland, Minnesota, Nevada, New Mexico,
North Carolina, Oregon, Puerto Rico, Tennessee, Vermont, Virginia, and
Wyoming. Of the remaining 12 States and Territories with OSHA-approved
State plans, three of the States and one Territory (Connecticut, New
Jersey, New York, and the Virgin Islands) cover only public-sector
employees and have no authority over the private-sector employees
addressed in the variance application (i.e., that authority continues
to reside with Federal OSHA). Additionally, four States (Kentucky,
Michigan, South Carolina, and Utah) accepted the proposed alternative
when specific additional requirements are fulfilled, while three States
and one Territory (California, Hawaii, Iowa, and Washington) either had
different requirements in their standards or declined to accept the
terms of the variance.
Based on the responses received from State-Plan States and
Territories, the permanent Federal OSHA variance will be effective in
the following State-Plan States and one Territory: Alaska, Arizona,
Indiana, Maryland, Minnesota, Nevada, New Mexico, North Carolina,
Oregon, Puerto Rico, Tennessee, Virginia, Vermont, and Wyoming; and in
Kentucky, Michigan, South Carolina, and Utah when the employers meet
specific additional requirements. However, this permanent variance does
not apply in Washington, California, Hawaii, or Iowa. As stated
earlier, in the three States and one Territory (Connecticut, New
Jersey, New York, and the Virgin Islands) that have State-Plan programs
that cover only public-sector employees, authority over the employers
under the permanent variance continues to reside with Federal OSHA.
VI. Decision
Commonwealth Dynamics, Inc., Mid-Atlantic Boiler & Chimney, Inc.,
and R and P Industrial Chimney Co., Inc. seek a permanent variance from
the provision that regulates the tackle used for boatswains' chairs (29
CFR 1926.452 (o)(3)), as well as the provisions specified for personnel
hoists by paragraphs (c)(1) through (c)(4), (c)(8), (c)(13),
(c)(14)(i), and (c)(16) of 29 CFR 1926.552. Paragraph (o)(3) of 29 CFR
1926.452 states that the tackle used for boatswains' chairs must
"consist of correct size ball bearings or bushed blocks containing
safety hooks and properly `eye-spliced' minimum five-eighth (\5/8\)
inch diameter first-grade manila rope [or equivalent rope]." The
primary purpose of this provision is to allow an employee to safely
control the ascent, descent, and stopping locations of the boatswains'
chair. The proposed alternative to these requirements allows the
employer to use a boatswains' chair to lift employees to work locations
inside and outside a chimney when both a personnel cage and a personnel
platform are infeasible. The employers proposed to attach the
boatswains' chair to the hoisting system described as an alternative
for paragraph (c) of 29 CFR 1926.552.
Paragraph (c) of 29 CFR 1926.552 specifies the requirements for
enclosed hoisting systems used to transport personnel from one
elevation to another. This paragraph ensures that employers transport
employees safely to and from elevated work platforms by mechanical
means during construction work involving structures such as chimneys.
In this regard, paragraph (c)(1) of 29 CFR 1926.552 requires employers
to enclose hoist towers located outside a chimney on the side or sides
used for entrance to, and exit from, the structure; these enclosures
must extend the full height of the hoist tower. Under the requirements
of paragraph (c)(2) of 29 CFR 1926.552, employers must enclose all four
sides of a hoist tower located inside a chimney; these enclosures also
must extend the full height of the tower.
As an alternative to complying with the hoist-tower requirements of
29 CFR 1926.552(c)(1) and (c)(2), the employers proposed to use a rope-
guided hoist system to transport employees to and from elevated work
locations inside and outside chimneys. The proposed hoist system
includes a hoist machine, cage, safety cables, and safety measures such
as limit switches to prevent overrun of the cage at the top and bottom
landings, and safety clamps that grip the safety cables if the main
hoist line fails. To transport employees to and from elevated work
locations, the employers proposed to attach a personnel cage to the
hoist system. However, when they can demonstrate that adequate space is
not available for the cage, they may use a personnel platform above the
last worksite that the cage can reach. Further, when the employers show
that space limitations make it infeasible to use a work platform for
transporting employees, they have proposed to use a boatswains' chair
above the last worksite serviced by the personnel platform. Using the
proposed hoist system as an alternative to the hoist-tower requirements
of 29 CFR 1926.552(c)(1) and (c)(2) eliminates the need to comply with
the other provisions of 29 CFR 1926.552(c) that specify requirements
for hoist towers.
Accordingly, the employers have requested a permanent variance from
these and related provisions (i.e., paragraphs (c)(3), (c)(4), (c)(8),
(c)(13), (c)(14)(i), and (c)(16)).
After reviewing the variance application, as well as the comments
made to the record regarding the application, OSHA has made only minor
editorial amendments and technical corrections to the proposed
variance.\4\ Therefore, under section 6(d) of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 655), and based on the record
discussed above, the Agency finds that when the employers comply with
the conditions of the following order, their employees will be exposed
to working conditions that are at least as safe and healthful as they
would be if the employers complied with paragraph (o)(3) of 29 CFR
1926.452, and paragraphs (c)(1) through (c)(4), (c)(8), (c)(13),
(c)(14)(i), and (c)(16) of 29 CFR 1926.552.
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\4\ Among the technical corrections, OSHA added two conditions
to the permanent variance. The first condition is a new paragraph
1(b) that requires the employers to use personnel cages, personnel
platforms, or boatswains' chairs only to transport employees with
the tools and materials necessary to do their work, and to attach a
hopper or concrete bucket to the hoist system for transporting other
materials and tools inside or outside a chimney. The second
condition revises paragraph 2(b) in the variance application by
adding a requirement that employers attach a boatswains' chair to
the hoisting cable only when they can demonstrate that the
structural arrangement of the chimney precludes the safe use of the
block and tackle required by 29 CFR 1926.452(o)(3). Both of these
technical corrections are consistent with language proposed by the
employers and described in section III (SUPPLEMENTARY INFORMATION)
of their variance application (see 69 FR 48755 and 48756).
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VII. Order
OSHA issues this order authorizing Commonwealth Dynamics, Inc.,
Mid-Atlantic Boiler & Chimney, Inc., and R and P Industrial Chimney
Co., Inc. ("the employers") to comply with the following conditions
instead of complying with paragraph (o)(3) of 29 CFR 1926.452 and
paragraphs (c)(1) through (c)(4), (c)(8), (c)(13), (c)(14)(i), and
(c)(16) of 29 CFR 1926.552:
1. Scope of the Permanent Variance
(a) This permanent variance applies only when the employers use a
rope-guided hoist system during inside or outside chimney construction
to raise or lower their employees between the bottom landing of a
chimney and an elevated work location on the inside or outside surface
of the chimney.
(b) When using a rope-guided hoist system as specified in this
permanent variance, the employers must:
(i) Use the personnel cages, personnel platforms, or boatswains'
chairs raised and lowered by the rope-guided hoist system solely to
transport employees with the tools and materials necessary to do their
work; and
(ii) Attach a hopper or concrete bucket to the rope-guided hoist
system to raise and lower all other materials and tools inside or
outside a chimney.
(c) Except for the requirements specified by 29 CFR 1926.452(o)(3)
and 1926.552(c)(1) through (c)(4), (c)(8), (c)(13), (c)(14)(i), and
(c)(16), the employers must comply fully with all other applicable
provisions of 29 CFR parts 1910 and 1926.
2. Replacing a Personnel Cage With a Personnel Platform or a
Boatswains' Chair
(a) Personnel platform. When the employers demonstrate that
available space makes a personnel cage for transporting employees
infeasible, they may replace the personnel cage with a personnel
platform when they limit use of the personnel platform to elevations
above the last work location that the personnel cage can reach.
(b) Boatswains' chair. Employers must:
(i) Before using a boatswains' chair, demonstrate that available
space makes it infeasible to use a personnel platform for transporting
employees;
(ii) Limit use of a boatswains' chair to elevations above the last
work location that the personnel platform can reach; and
(iii) Use a boatswains' chair in accordance with block-and-tackle
requirements specified by 29 CFR 1926.452(o)(3), unless they can
demonstrate that the structural arrangement of the chimney precludes
such use.
3. Qualified Competent Person
(a) The employers must:
(i) Provide a qualified competent person, as specified in
paragraphs (f) and (m) of 29 CFR 1926.32, who is responsible for
ensuring that the design, maintenance, and inspection of the hoist
system comply with the conditions of this grant and with the
appropriate requirements of 29 CFR part 1926 ("Safety and Health
Regulations for Construction"); and
(ii) Ensure that the qualified competent person is present at
ground level to assist in an emergency whenever the hoist system is
raising or lowering employees.
(b) The employers must use a qualified competent person to design
and maintain the cathead described under Condition 8 ("Cathead and
Sheave") below.
4. Hoist Machine
(a) Type of hoist. The employers must designate the hoist machine
as a portable personnel hoist.
(b) Raising or lowering a transport. The employers must ensure
that:
(i) The hoist machine includes a base-mounted drum hoist designed
to control line speed; and
(ii) Whenever they raise or lower a personnel or material hoist
(e.g., a personnel cage, personnel platform, boatswains' chair, hopper,
concrete bucket) using the hoist system:
(A) The drive components are engaged continuously when an empty or
occupied transport is being lowered (i.e., no "freewheeling");
(B) The drive system is interconnected, on a continuous basis,
through a torque converter, mechanical coupling, or an equivalent
coupling (e.g., electronic controller, fluid clutches, hydraulic
drives).
(C) The braking mechanism is applied automatically when the
transmission is in the neutral position and a forward-reverse coupling
or shifting transmission is being used; and
(D) No belts are used between the power source and the winding
drum.
(c) Power source. The employers must power the hoist machine by an
air, electric, hydraulic, or internal-combustion drive mechanism.
(d) Constant-pressure control switch. The employers must:
(i) Equip the hoist machine with a hand- or foot-operated constant-
pressure control switch (i.e., a "deadman control switch") that stops
the hoist immediately upon release; and
(ii) Protect the control switch to prevent it from activating if
the hoist machine is struck by a falling or moving object.
(e) Line-speed indicator. The employers must:
(i) Equip the hoist machine with an operating line-speed indicator
maintained in good working order; and
(ii) Ensure that the line-speed indicator is in clear view of the
hoist operator during hoisting operations.
(f) Braking systems. The employers must equip the hoist machine
with two (2) independent braking systems (i.e., one automatic and one
manual) located on the winding side of the clutch or couplings, with
each braking system being capable of stopping and holding 150 percent
of the maximum rated load.
(g) Slack-rope switch. The employers must equip the hoist machine
with a slack-rope switch to prevent rotation of the winding drum under
slack-rope conditions.
(h) Frame. The employers must ensure that the frame of the hoist
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\
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\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."
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(k) Drum and flange diameter. The employers must:
(i) Provide a winding drum for the hoist that is at least 30 times
the diameter of the rope used for hoisting; and
(ii) Ensure that the winding drum has a flange diameter that is at
least one and one-half (1\1/2\) times the winding-drum diameter.
(l) Spooling of the rope. The employers must never spool the rope
closer than two (2) inches (5.1 cm) from the outer edge of the winding-
drum flange.
(m) Electrical system. The employers must ensure that all
electrical equipment is weatherproof.
(n) Limit switches. The employers must equip the hoist system with
limit switches and related equipment that automatically prevent
overtravel of a personnel cage, personnel platform, boatswains' chair,
or material-transport device at the top of the supporting structure and
at the bottom of the hoistway or lowest landing level.
5. Methods of Operation
(a) Employee qualifications and training. The employers must:
(i) Ensure that only trained and experienced employees, who are
knowledgeable of hoist-system operations, control the hoist machine;
and
(ii) Provide instruction, periodically and as necessary, on how to
operate the hoist system, to each employee who uses a personnel cage
for transportation.
(b) Speed limitations. The employers must not operate the hoist at
a speed in excess of:
(i) Two hundred and fifty (250) feet (76.9 m) per minute when a
personnel cage is being used to transport employees;
(ii) One hundred (100) feet (30.5 m) per minute when a personnel
platform or boatswains' chair is being used to transport employees; or
(iii) A line speed that is consistent with the design limitations
of the system when only material is being hoisted.
(c) Communication. The employers must:
(i) Use a voice-mediated intercommunication system to maintain
communication between the hoist operator and the employees located in
or on a moving personnel cage, personnel platform, or boatswains'
chair;
(ii) Stop hoisting if, for any reason, the communication system
fails to operate effectively; and
(iii) Resume hoisting only when the site superintendent determines
that it is safe to do so.
6. Hoist Rope
(a) Grade. The employers must use a wire rope for the hoist system
(i.e., "hoist rope") that consists of extra-improved plow steel, an
equivalent grade of non-rotating rope, or a regular lay rope with a
suitable swivel mechanism.
(b) Safety factor. The employers must maintain a safety factor of
at least eight (8) times the safe workload throughout the entire length
of hoist rope.
(c) Size. The employers must use a hoist rope that is at least one-
half (1/2) inch (1.3 cm) in diameter.
(d) Inspection, removal, and replacement. The employers must:
(i) Thoroughly inspect the hoist rope before the start of each job
and on completing a new setup;
(ii) Maintain the proper diameter-to-diameter ratios between the
hoist rope and the footblock and the sheave by inspecting the wire rope
regularly (see Conditions 7(c) and 8(d) below); and
(iii) Remove and replace the wire rope with new wire rope when any
of the conditions specified by 29 CFR 1926.552(a)(3) occurs.
(e) Attachments. The employers must attach the rope to a personnel
cage, personnel platform, or boatswains' chair with a keyed-screwpin
shackle or positive-locking link.
(f) Wire-rope fastenings. When the employers use clip fastenings
(e.g., U-bolt wire-rope clips) with wire ropes, they must:
(i) Use Table H-20 of 29 CFR 1926.251 to determine the number and
spacing of clips;
(ii) Use at least three (3) drop-forged clips at each fastening;
(iii) Install the clips with the "U" of the clips on the dead end
of the rope; and
(iv) Space the clips so that the distance between them is six (6)
times the diameter of the rope.
7. Footblock
(a) Type of block. The employers must use a footblock:
(i) Consisting of construction-type blocks of solid single-piece
bail with a safety factor that is at least four (4) times the safe
workload, or an equivalent block with roller bearings;
(ii) Designed for the applied loading, size, and type of wire rope
used for hoisting;
(iii) Designed with a guard that contains the wire rope within the
sheave groove;
(iv) Bolted rigidly to the base; and
(v) Designed and installed so that it turns the moving wire rope to
and from the horizontal or vertical direction as required by the
direction of rope travel.
(b) Directional change. The employers must ensure that the angle of
change in the hoist rope from the horizontal to the vertical direction
at the footblock is approximately 90[deg].
(c) Diameter. The employers must ensure that the line diameter of
the footblock is at least 24 times the diameter of the hoist rope.
8. Cathead and Sheave
(a) Support. The employers must use a cathead (i.e., "overhead
support") that consists of a wide-flange beam, or two (2) steel-
channel sections securely bolted back-to-back to prevent spreading.
(b) Installation. The employers must ensure that:
(i) All sheaves revolve on shafts that rotate on bearings; and
(ii) The bearings are mounted securely to maintain the proper
bearing position at all times.
(c) Rope guides. The employers must provide each sheave with
appropriate rope guides to prevent the hoist rope from leaving the
sheave grooves when the rope vibrates or swings abnormally.
(d) Diameter. The employers must use a sheave with a diameter that
is at least 24 times the diameter of the hoist rope.
9. Guide Ropes
(a) Number and construction. The employers must affix two (2) guide
ropes by swivels to the cathead. The guide ropes must:
(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.
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\2\ To reduce impact hazards should employees lose their balance
because of cage movement.
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(b) Overhead weight. A personnel cage must have an overhead weight
(e.g., a headache ball of appropriate weight) to compensate for the
weight of the hoist rope between the cathead and footblock. In
addition, the employers must:
(i) Ensure that the overhead weight is capable of preventing line
run; and
(ii) Use a means to restrain the movement of the overhead weight so
that the weight does not interfere with safe personnel hoisting.
(c) Gate. The personnel cage must have a gate that:
(i) Guards the full height of the entrance opening; and
(ii) Has a functioning mechanical lock that prevents accidental
opening.
(d) Operating procedures. The employers must post the procedures
for operating the personnel cage conspicuously at the hoist operator's
station.
(e) Capacity. The employers must:
(i) Hoist no more than four (4) occupants in the cage at any one
time; and
(ii) Ensure that the rated load capacity of the cage is at least
250 pounds (113.4 kg) for each occupant so hoisted.
(f) Employee notification. The employers must post a sign in each
personnel cage notifying employees of the following conditions:
(i) The standard rated load, as determined by the initial static
drop test specified by Condition 10(g) ("Static drop tests") below;
and
(ii) The reduced rated load for the specific job.
(g) Static drop tests. The employers must:
(i) Conduct static drop tests of each personnel cage that comply
with the definition of "static drop test" specified by section 3
("Definitions") and the static drop-test procedures provided in
section 13 ("Inspections and Tests") of American National Standards
Institute (ANSI) standard A10.22-1990 (R1998) ("American National
Standard for Rope-Guided and Nonguided Worker's Hoists--Safety
Requirements");
(ii) Perform the initial static drop test at 125 percent of the
maximum rated load of the personnel cage, and subsequent drop tests at
no less than 100 percent of its maximum rated load; and
(iii) Use a personnel cage for raising or lowering employees only
when no damage occurred to the components of the cage as a result of
the static drop tests.
11. Safety Clamps
(a) Fit to the guide ropes. The employers must:
(i) Fit appropriately designed and constructed safety clamps to the
guide ropes; and
(ii) Ensure that the safety clamps do not damage the guide ropes
when in use.
(b) Attach to the personnel cage. The employers must attach safety
clamps to each personnel cage for gripping the guide ropes.
(c) Operation. The safety clamps attached to the personnel cage
must:
(i) Operate on the "broken rope principle" defined in section 3
("Definitions") of ANSI standard A10.22-1990 (R1998);
(ii) Be capable of stopping and holding a personnel cage that is
carrying 100 percent of its maximum rated load and traveling at its
maximum allowable speed if the hoist rope breaks at the footblock; and
(iii) Use a pre-determined and pre-set clamping force (i.e., the
"spring compression force") for each hoist system.
(d) Maintenance. The employers must keep the safety-clamp
assemblies clean and functional at all times.
12. Overhead Protection
(a) The employers must install a canopy or shield over the top of
the personnel cage that is made of steel plate at least three-sixteenth
(3/16) of an inch (4.763 mm) thick, or material of equivalent strength
and impact resistance, to protect employees (i.e., both inside and
outside the chimney) from material and debris that may fall from above.
(b) The employers must ensure that the canopy or shield slopes to
the outside of the personnel cage.\3\
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\3\ Paragraphs (a) and (b) were adapted from OSHA's Underground
Construction Standard (29 CFR 1926.800(t)(4)(iv)).
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13. Emergency-Escape Device
(a) Location. The employers must provide an emergency-escape device
in at least one of the following locations:
(i) In the personnel cage, provided that the device is long enough
to reach the bottom landing from the highest possible escape point; or
(ii) At the bottom landing, provided that a means is available in
the personnel cage for the occupants to raise the device to the highest
possible escape point.
(b) Operating instructions. The employers must ensure that written
instructions for operating the emergency-escape device are attached to
the device.
(c) Training. The employers must instruct each employee who uses a
personnel cage for transportation on how to operate the emergency-
escape device:
(i) Before the employee uses a personnel cage for transportation;
and
(ii) Periodically, and as necessary, thereafter.
14. Personnel Platforms and Fall-Protection Equipment
(a) Personnel platforms. When the employers elect to replace the
personnel cage with a personnel platform in accordance with Condition
2(a) of this variance, they must:
(i) Ensure that an enclosure surrounds the platform, and that this
enclosure is at least 42 inches (106.7 cm) above the platform's floor;
(ii) Provide overhead protection when an overhead hazard is, or
could be, present; and
(iii) Comply with the applicable scaffolding strength requirements
specified by 29 CFR 1926.451(a)(1).
(b) Fall-protection equipment. Before employees use work platforms
or boatswains' chairs, the employers must equip the employees with, and
ensure that they use, full body harnesses, lanyards and lifelines as specified
by 29 CFR 1926.104 and the applicable requirements of 29 CFR 1926.502(d). This
requirement includes securing the lifelines to the top of the chimney and to a
weight at the bottom of the chimney, and ensuring the employees'
lanyards are attached to the lifeline during the entire period of
vertical transit.
15. Inspections, Tests, and Accident Prevention
(a) The employers must:
(i) Conduct inspections of the hoist system as required by 29 CFR
1926.20(b)(2);
(ii) Ensure that a competent person conducts daily visual
inspections of the hoist system; and
(iii) Inspect and test the hoist system as specified by 29 CFR
1926.552(c)(15).
(b) The employers must comply with the accident-prevention
requirements of 29 CFR 1926.20(b)(3).
16. Welding
(a) The employers must use only qualified welders to weld
components of the hoisting system.
(b) The employers must ensure that the qualified welders:
(i) Are familiar with the weld grades, types, and materials
specified in the design of the system; and
(ii) Perform the welding tasks in accordance with 29 CFR part 1926,
subpart J ("Welding and Cutting").
VII. Authority and Signature
Jonathan L. Snare, Acting Assistant Secretary of Labor for
Occupational Safety and Health, U.S. Department of Labor, 200
Constitution Ave., NW., Washington, DC directed the preparation of this
notice. This notice is issued under the authority specified by section
6(d) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655),
Secretary of Labor's Order No. 5-2002 (67 FR 65008), and 29 CFR part
1905.
Signed at Washington, DC on January 30, 2005.
Jonathan L. Snare,
Acting Assistant Secretary of Labor.
[FR Doc. E6-2959 Filed 2-28-06; 8:45 am]
BILLING CODE 4510-26-P
