[Federal Register: November 9, 2009 (Volume 74, Number 215)][Notices] [Page 57704-57712]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09no09-84]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
[Docket No. OSHA-2009-0005]
Avalotis Corp.; Notice of Application for a Permanent Variance
and Interim Order, Grant of an Interim Order, and Request for Comments
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Application for a permanent variance and interim order; grant
of an interim order.
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SUMMARY: Avalotis Corp. ("the applicant") applied for a permanent
variance from the provisions of the OSHA standards that regulate
boatswain's chairs and hoist towers, specifically 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. In addition, the applicant
requested an interim order based on the alternative conditions
specified by the variance application. These alternative conditions
consist of the same conditions specified in recent variances granted by
OSHA from these hoist-tower and boatswain's-chair provisions, as well
as several additional conditions that would provide workers with
protection from shearing, fall, and struck-by hazards. Therefore, OSHA
is granting the applicant's request for an interim order.
DATES: Comments and requests for a hearing must be submitted
(postmarked, sent, or received) by December 9, 2009. The interim order
specified by this notice becomes effective on November 9, 2009.
ADDRESSES: Electronic. Comments and requests for a hearing may be
submitted electronically at http://www.regulations.gov, which is the
Federal eRulemaking Portal. Follow the instructions online for
submitting comments.
Facsimile. OSHA allows facsimile transmission of comments that are
10 pages or fewer in length (including attachments), as well as hearing
requests. Send these comments and requests to the OSHA Docket Office at
(202) 693-1648; hard copies of these comments are not required. Instead
of transmitting facsimile copies of attachments that supplement their
comments (e.g., studies and journal articles), commenters may submit
these attachments, in triplicate hard copy, to the OSHA Docket Office,
Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200
Constitution Ave., NW., Washington, DC 20210. These attachments must
clearly identify the sender's name, date, subject, and docket number
(i.e., OSHA-2009-0005) so that the Agency can attach them to the
appropriate comments.
Regular mail, express delivery, hand (courier) delivery, and
messenger service. Submit three copies of comments and any additional
material (e.g., studies and journal articles), as well as hearing
requests, to the OSHA Docket Office, Docket No. OSHA-2009-0005,
Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200
Constitution Ave., NW., Washington, DC 20210; telephone: (202) 693-
2350. Please contact the OSHA Docket Office at (202) 693-2350 for
information about security procedures concerning the delivery of
materials by express delivery, hand delivery, and messenger service.
The hours of operation for the OSHA Docket Office and Department of
Labor are 8:15 a.m. to 4:45 p.m., e.t.
Instructions. All submissions must include the Agency name and the
OSHA docket number (i.e., OSHA Docket No. OSHA-2009-0005). OSHA places
comments and other materials, including any personal information, in
the public docket without revision, and these materials may be
available online at http://www.regulations.gov. Therefore, the Agency
cautions commenters about submitting statements they do not want made
available to the public, or submitting comments that contain personal
information (either about themselves or others) such as Social Security
numbers, birth dates, and medical data.
Docket. To read or download submissions or other material in the
docket, go to http://www.regulations.gov or to the OSHA Docket Office
at the address above. All documents in the docket are listed in the
http://www.regulations.gov index; however, some information (e.g.,
copyrighted material) is not publicly available to read or download
through this Web site. All submissions, including copyrighted material,
are available for inspection and copying at the OSHA Docket Office.
FOR FURTHER INFORMATION CONTACT: General information and press
inquiries. For general information and press inquiries about this
notice contact Jennifer Ashley, Director, OSHA Office of
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210; telephone: (202) 693-1999.
Technical information. For technical information about this notice,
contact 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. Copies of this Federal Register notice.
Electronic copies of this notice are available at http://
www.regulations.gov. Electronic copies of this notice, as well as news
releases and other relevant information, are available on OSHA's Web
page at http://www.osha.gov.
I. Notice of Application
Avalotis Corp. ("the applicant") submitted an application for a
permanent variance under Section 6(d) of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 655) and 29 CFR 1905.11 ("Variances and
other relief under section 6(d)") (see Ex. 1--Avalotis Corp.
Application).\1\ The applicant seeks a permanent variance from 29 CFR
1926.452(o)(3), which provides the tackle requirements for boatswain's
chairs. The applicant also requests a variance from paragraphs (c)(1)
through (c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16) of 29 CFR
1926.552 that regulate hoist towers. These latter paragraphs specify
the following requirements:
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\1\ The principal address for the applicant is: Avalotis Corp.,
400 Jones Street, Verona, PA 15147.
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(c)(1)--Construction requirements for hoist towers outside
a structure;
(c)(2)--Construction requirements for hoist towers inside
a structure;
(c)(3)--Anchoring a hoist tower to a structure;
(c)(4)--Hoistway doors or gates;
(c)(8)--Electrically interlocking entrance doors or gates
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
hoisting; and
(c)(16)--Material and component requirements for
construction of personnel hoists.
The applicant contends that the permanent variance would provide
its workers with a place of employment that is at least as safe and
healthful as they would obtain under the existing provisions. The
places of employment affected by this variance application are the
present and future projects where the applicant constructs chimneys.
The applicant certifies that it provided employee representatives
of current workers who would be affected by the permanent variance with
a copy of its variance request. The applicant also certifies that it
notified its workers of the variance request by posting a summary of
the application and specifying where the workers can examine a copy of
the application at prominent locations where they normally post notices
to its workers. In addition, the applicant informed workers and their
representatives of their right to petition the Assistant Secretary of
Labor for Occupational Safety and Health for a hearing on this variance
application.
II. Multi-State Variance
The applicant stated that it performs chimney work in a number of
States and Territories that operate OSHA-approved safety and health
programs under Section 18 of the Occupational Safety and Health Act of
1970 (29 U.S.C. 651 et seq.). Twenty-seven States and Territories have
OSHA-approved safety and health programs.\2\ As part of this variance
process, the Directorate of Cooperative and State Programs will notify
the State-Plan States and Territories of this variance application and
advise them that, unless they object, OSHA will assume the State's
position regarding this application is the same as its position
regarding prior identical variances.
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\2\ Four State-Plan States (i.e., Connecticut, Illinois, New
Jersey, and New York) and one Territory (i.e., Virgin Islands) limit
their occupational safety and health authority to public-sector
employees only. The 21 State-Plan States and one Territory that have
jurisdiction over both public- and private-sector employers and
employees are: Alaska, Arizona, California, Hawaii, Indiana, Iowa,
Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North
Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah,
Vermont, Virginia, Washington, and Wyoming.
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Thirteen States and one Territory have agreed to the terms of the
earlier variance requests addressing chimney construction (i.e.,
Alaska, Arizona, Indiana, Maryland, Minnesota, Nevada, New Mexico,
North Carolina, Oregon, Puerto Rico, Tennessee, Vermont, Virginia, and
Wyoming). Four States have imposed additional requirements and
conditions (i.e., Kentucky, Michigan, South Carolina, and Utah), and
four States have objected to the earlier variance requests (i.e.,
California, Hawaii, Iowa, and Washington). In the eight States that
impose additional conditions or have declined the terms of the variance
application, employers would have to contact or apply directly to the
State-Plan Office and meet State-specific requirements should OSHA
grant the variance request. The variance would not be applicable to
five State Plans that cover only public-sector workers (i.e.,
Connecticut, Illinois, New Jersey, New York, and the Virgin Islands),
and authority over variances in these States continues to reside with
Federal OSHA.
III. Supplementary Information
A. Overview
The applicant constructs remodels, repairs, maintains, inspects,
and demolishes tall chimneys made of reinforced concrete, brick, and
steel. This work requires the applicant 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 requires
frequent relocation of, and adjustments to, the work platforms and
scaffolds so that they will fit the decreasing circumference of the
chimney as construction progresses upwards.
To transport workers to various heights inside and outside a
chimney, the applicant proposes to use a hoist system that would lift
and lower personnel-transport devices (i.e., personnel cages, personnel
platforms, or boatswain's chairs). The applicant also would attach
material-transport devices such as hoppers, concrete buckets, or other
containers to the hoist system to raise or lower construction material
or equipment inside or outside a chimney. The applicant would 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 in the absence of
workers.
B. Previous Variances From 29 CFR 1926.452(o)(3) and 1926.552(c)
Since 1973, a number of chimney construction companies demonstrated
to OSHA that several of the hoist-tower requirements of 29 CFR
1926.552(c) present chimney-access problems that pose a serious danger
to their workers. These companies received permanent variances from
these personnel-hoist and boatswain's-chair requirements, and they used
essentially the same alternate apparatus and procedures that the
applicant is now proposing to use in this variance application. The
Agency published the permanent variances for these companies at 38 FR
8545 (April 3, 1973), 44 FR 51352 (August 31, 1979), 50 FR 20145 (May
14, 1985), 50 FR 40627 (October 4, 1985), 52 FR 22552 (June 12, 1987),
68 FR 52961 (September 8, 2003), 70 FR 72659 (December 6, 2005), 71 FR
10557 (March 1, 2006), 74 FR 34789 (July 17, 2009) and 74 FR 41742
(August 18, 2009).\3\
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\3\ Zurn Industries, Inc. received two permanent variances from
OSHA. The first variance, granted on May 14, 1985 (50 FR 20145),
addressed the boatswain's-chair provision (then in paragraph (l)(5)
of Sec. 1926.451), as well as the hoist-tower requirements of
paragraphs (c)(1), (c)(2), (c)(3), and (c)(14)(i) of Sec. 1926.552.
The second variance, granted on June 12, 1987 (52 FR 22552),
included these same paragraphs, as well as paragraphs (c)(4),
(c)(8), (c)(13), and (c)(16) of Sec. 1926.552.
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In 1980, the Agency evaluated the alternative conditions specified
in the permanent variances that it granted to chimney construction
companies as of that date. In doing so, OSHA observed hoisting
operations conducted by these companies at various construction sites.
These evaluations found that, while the alternative conditions
generally were safe, compliance with the conditions among the companies
was uneven (see Ex. 2--OSHA Evaluation Report). Additionally, the
National Chimney Construction Safety and Health Advisory Committee
(NCCSHAC), an industry-affiliated organization, conducted evaluations
of the hoist systems that provided useful information regarding the
safety and efficacy of the alternative conditions (see Ex. 3--NCCSHAC
Report).
The permanent variance granted by OSHA to American Boiler and
Chimney Co. and Oak Park Chimney Corp. (see 68 FR 52961, September 8,
2003) updated the permanent variances granted by the Agency in the
1970s and 1980s by clarifying the alternative conditions and citing the
most recent consensus standards and other references. In 2009, OSHA
updated a letter of interpretation regarding the provisions that
regulate the tackle used for boatswain's chairs (29 CFR
1926.452(o)(3)), as well as the provisions specified for personnel
hoists in 29 CFR 1926.552(c)(1) through 1926.552(c)(4), 1926.552(c)(8),
1926.552(c)(13), 1926.552(c)(14)(i), and 1926.552(c)(16). The updates
include conditions that the Agency believes are necessary to protect
workers from shearing or struck-by hazards associated with using hoist
systems in chimney construction (see Ex. 4--2009 Revised OSHA Letter of
Interpretation). OSHA shared the letter of interpretation with the
applicant (see Ex. 5--OSHA E-mail to Avalotis Corp.). The applicant
reviewed the letter of interpretation and notified OSHA that its
application for variance should be amended to include all conditions
described in the letter of interpretation (see Ex. 6--Avalotis Corp.
Letter to OSHA). In this letter, the applicant also requested that its
application be amended to include the following conditions, which are
included in the most recent variances granted by OSHA: Notify the OSHA
Area Office nearest to the worksite, or the appropriate State Plan
Office, of the operation prior to commencing any chimney construction
operation; and, inform OSHA national headquarters as soon as it has
knowledge that it will cease to do business or transfer the activities
covered by a granted variance or interim order to a successor company.
On the basis of its experience and knowledge, the Agency finds that
the applicant's request for a permanent variance is consistent with the
permanent variances that OSHA granted previously to other employers in
the chimney construction industry. Therefore, the Agency believes that
the conditions specified in this variance application will provide the
applicant's workers with at least the same level of safety they would
receive from 29 CFR 1926.452(o)(3) and paragraphs (c)(1) through
(c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16) of 29 CFR 1926.552.
C. Requested Variance From 29 CFR 1926.452(o)(3)
The applicant states 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 tapered chimney during flue installation
or repair work, or to and from an elevated scaffold located inside a
chimney that has a 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 (1.6 cm) 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 applicant notes that the required
tackle is difficult or impossible to operate on some chimneys that are
over 200 feet tall because of space limitations. Therefore, as an
alternative to complying with the tackle requirements specified by 29
CFR 1926.452(o)(3), the applicant proposes to use the hoisting system
described in Section II.E ("Proposed Alternative to 29 CFR
1926.452(o)(3) and 29 CFR 1926.552(c)") of this notice, both inside
and outside a chimney, to raise or lower workers in a personnel cage to
work locations. The applicant would use a personnel cage for this
purpose to the extent that adequate space is available; it would use a
personnel platform whenever a personnel cage is infeasible because of
limited space. When limited space makes a personnel platform
infeasible, the applicant then would use a boatswain's chair to lift
workers to work locations. The applicant would limit use of the
boatswain's chair to elevations above the highest work location that
the personnel cage and personnel platform can reach; under these
conditions, the applicant would 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).
D. Requested Variance From 29 CFR 1926.552(c)
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 the construction, alteration, repair, maintenance, or demolition
of structures such as chimneys. However, this standard does not provide
specific safety requirements for hoisting personnel to and from
elevated work platforms and scaffolds in tapered chimneys; the tapered
design requires frequent relocation of, and adjustment to, the work
platforms and scaffolds. The space in a 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 extra bridging and
bracing must be installed to support a walkway between the hoist tower
and the tapered chimney.
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 chimney; these enclosures must extend
the full height of the hoist tower. The applicant asserts 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, the applicant notes 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. The
applicant contends that it is hazardous for workers to erect and brace
a hoist tower inside a chimney, especially tapered chimneys, 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 applicant proposes to use the
hoist system described below in Section II.E ("Proposed Alternative to
29 CFR 1926.452(o)(3) and 29 CFR 1926.552(c)") of this notice to
transport workers to and from work locations inside and outside
chimneys. Use of the proposed hoist system would eliminate the need for
the applicant to comply with other provisions of 29 CFR 1926.552(c)
that specify requirements for hoist towers. Therefore, the applicant
also is requesting a permanent variance from the following related
provisions:
(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)--Material and component requirements for
construction of personnel hoists.
The applicant asserts that the proposed hoisting system would
protect its workers at least as effectively as the hoist-tower
requirements of 29 CFR 1926.552(c).
E. Proposed Alternative to 29 CFR 1926.452(o)(3) and 29 CFR 1926.552(c)
To power the hoist system, the applicant would use a hoist engine,
located and controlled outside the chimney. The system also would
consist of a wire rope that: spools off the hoist drum into the
interior of the chimney; passes to a footblock that redirects the rope
from the horizontal to the vertical planes; goes from the footblock
through the overhead sheaves above the elevated platform; and finally
drops to the bottom landing of the chimney where it connects to a
personnel- or material-transport device. The cathead, which is a
superstructure at the top of the hoist system, supports the overhead
sheaves. The overhead sheaves (and the vertical span of the hoist
system) move upward with the hoist 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 applicant would use a headache ball, located on the hoist
rope directly above the load, to counterbalance the rope's weight
between the cathead sheaves and the footblock.
The applicant would implement additional conditions to improve
worker safety, including:
(1) Attaching the wire rope to the personnel cage using a keyed-
screwpin shackle or positive-locking link;
(2) Adding limit switches to the hoist system to prevent overtravel
by the personnel- or material-transport devices;
(3) 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;
(4) Providing falling-object protection for scaffold platforms as
specified by 29 CFR 1926.451(h)(1);
(5) Conducting tests and inspections of the hoist system as
required by 29 CFR 1926.20(b)(2) and 1926.552(c)(15);
(6) Establishing an accident prevention program that conforms to 29
CFR 1926.20(b)(3);
(7) Equipping workers who use a personnel cage, personnel platform,
or boatswain's chair with, and ensuring that they use, personal fall
arrest systems meeting the requirements of 29 CFR 1926.502(d);
(8) Ensuring that workers using a personnel cage secure their
personal fall arrest system to an attachment point located inside the
cage, and that workers using personnel platforms or boatswain's chairs
secure their personal fall arrest systems to a vertical lifeline;
(9) When using vertical lifelines, securing the lifelines to the
top of the chimney and weighting the lifelines properly or suitably
affixing the lifelines to the bottom of the chimney, and ensuring that
workers remain attached to their lifeline during the entire period of
vertical transit;
(10) Providing instruction to each worker who uses a personnel
platform or boatswain's chair regarding 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;
(11) Providing the instruction on shearing hazards before a worker
uses one of these personnel-transport devices at the worksite; and
periodically, and as necessary, thereafter, including whenever the
worker demonstrates a lack of knowledge about the hazard or how to
avoid it, a modification occurs to an existing shearing hazard, or a
new shearing hazard develops at the worksite;
(12) Attaching a readily visible warning to each personnel platform
and boatswain's chair notifying workers in a language they understand
of potential shearing hazards during hoisting operations. For warnings
located on personnel platforms, using the following (or equivalent)
wording: "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." For boatswain's chairs, the warning would use the
following (or equivalent) wording: "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";
and
(13) Establishing a clearly designated exclusion zone around the
hoist system's bottom landing and prohibiting any worker from entering
the exclusion zone except to access a personnel cage, personnel
platform, boatswain's chair, or material-transport device, and then
only when the personnel- and material-transport device is at the bottom
landing and not in operation.
In its revised letter of interpretation (see Ex. 4--2009 Revised
OSHA Letter of Interpretation), OSHA revised the requirements for using
personal fall protection systems specified in previous variances
addressing these hoist systems (see Conditions 7 and 8, above). This
revision requires the applicant to provide workers using personnel
cages with personal fall protection systems, and to ensure that the
workers use these systems in accordance with 29 CFR 1926.502(d). OSHA
believes this revision will protect workers from falling out of a
personnel cage in the event the door of the cage opens inadvertently
during lifting operations.
Conditions 10-13 are new conditions that were added when OSHA
revised its letter of interpretation. OSHA believes that these
additional conditions are necessary to protect workers from shearing,
fall, and struck-by hazards associated with using hoist systems in
chimney construction. Accordingly, conditions 10-12 address shearing
hazards that workers may encounter while a personnel platform or
boatswain's chair is transporting them to or from an elevated jobsite.
During transport, the personnel-transport device will 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 device. To prevent these
injuries, OSHA believes that workers who use these devices must be able
to recognize shearing hazards at the worksite, and how to avoid them.
Additionally, attaching a readily visible warning of the hazards to
personnel platforms and boatswain's chairs would supplement and
reinforce the hazard training by reminding workers of the hazard and
how to avoid it.
The last condition (Condition 13) requires the applicant to
establish an exclusion zone around the bottom landing where workers
access personnel- and material-transport devices. The applicant must
ensure that workers enter the exclusion zone only to access a transport
device that is in the area circumscribed by the exclusion zone, and
only when the hoist system is not in operation. 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 is necessary for the applicant to establish an
exclusion zone and ensure that workers only enter the exclusion 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).
In its letter (Ex. 6--Avalotis Corp. Letter to OSHA), the applicant
agreed to adopt all the conditions specified in the August 18, 2009
letter of interpretation, and also indicated that it would adopt
conditions that require the applicant 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
application, and (2) OSHA national headquarters as soon as an applicant
knows that it will cease doing business or transfers the activities
covered by the variance to another company. OSHA believes that these
notification requirements would improve administrative oversight of the
variance program, thereby enhancing worker safety and reducing its
administrative burden.
III. Grant of Interim Order
In addition to requesting a permanent variance, the applicant also
requested an interim order that would remain in effect until the Agency
makes a decision on its application for a permanent variance. During
this period, the applicant must comply fully with the conditions of the
interim order as an alternative to complying with the tackle
requirements provided for boatswain's chairs by 29 CFR 1926.452(o)(3)
and the requirements for hoist towers specified by paragraphs (c)(1)
through (c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16) of 29 CFR
1926.552.
Based on its previous experience with permanent variances from
these provisions granted to other companies, OSHA believes that an
interim order is justified in this case. As noted above in Section II.B
("Previous Variances from 29 CFR 1926.452(o)(3) and 1926.552(c)") of
this notice, the Agency has granted a number of permanent variances
from these provisions since 1973. Over this period, the affected
companies have effectively used the alternative conditions specified in
the variances. The conditions of the interim order requested by the
applicant substantially duplicate the conditions approved recently in
the permanent variance granted to American Boiler and Chimney Co. and
Oak Park Chimney Corp. (see 68 FR 52961), while adding conditions that
would provide workers with protection from shearing, fall, and struck-
by hazards. In granting a permanent variance to American Boiler and
Chimney Co. and Oak Park Chimney Corp., the Agency stated, "[W]hen the
employers comply with the conditions of the following order, their
workers 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." (See 68
FR 52967.)
Based on its determination that the alternative conditions proposed
by American Boiler and Chimney Co. and Oak Park Chimney Corp. will
protect workers at least as effectively as the requirements of
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, as
well as the additional conditions specified in this variance
application that will protect workers from shearing, fall, and struck-
by hazards, OSHA has decided to grant an interim order to the applicant
pursuant to the provisions of 29 CFR 1905.11(c). Accordingly, in lieu
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, the applicant will: (1) Provide notice of this grant of
an interim order to the workers affected by the conditions of the
interim order using the same means it used to inform these workers of
their applications for a permanent variance; and (2) comply with the
conditions listed below in Section IV ("Specific Conditions of the
Interim Order and the Application for a Permanent Variance") of this
application for the period between the date of this Federal Register
notice and the date the Agency publishes its final decision on the
application in the Federal Register; the interim order will remain in
effect during this period unless OSHA modifies or revokes it in
accordance with the requirements of 29 CFR 1905.13.
IV. Specific Conditions of the Interim Order and the Application for a
Permanent Variance
The following conditions apply to the interim order being granted
by OSHA to Avalotis Corp. as part of its application for a permanent
variance described in this Federal Register notice. In addition, these
conditions specify the alternatives to the requirements of paragraph
(o)(3) of 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 that the applicant
is proposing in its application for a permanent variance. These
conditions include: \4\
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\4\ In these conditions, the verb "must" applies to the
interim order, while the verb "would" pertains to the application
for a permanent variance.
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1. Scope
(a) The interim order/permanent variance applies/would apply only
to tapered chimneys when the applicant uses a hoist system during
inside or outside chimney construction to raise or lower its 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 interim order/
permanent variance, the applicant must/would:
(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 applicant must/would comply fully with all other
applicable provisions of 29 CFR parts 1910 and 1926.
2. Replacing a Personnel Cage With a Personnel Platform or a
Boatswain's Chair
(a) Personnel platform. When the applicant demonstrates that
available space makes a personnel cage for transporting workers
infeasible, it may replace the personnel cage with a personnel platform
when it limits use of the personnel platform to elevations above the
last work location that the personnel cage can reach.
(b) Boatswain's chair. The applicant must/would:
(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 block-and-tackle
requirements specified by 29 CFR 1926.452(o)(3), unless it can
demonstrate that the structural arrangement of the chimney precludes
such use.
3. Qualified Competent Person
(a) The applicant must/would:
(i) Provide a qualified competent person, as specified in
paragraphs (f) and (m) of 29 CFR 1926.32, who is responsible for
ensuring that the design, maintenance, and inspection of the hoist
system comply with the conditions specified herein 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 applicant must/would use a qualified competent person to
design and maintain the cathead described under Condition 8 ("Cathead
and Sheave") below.
4. Hoist Machine
(a) Type of hoist. The applicant must/would designate the hoist
machine as a portable personnel hoist.
(b) Raising or lowering a transport. The applicant must/would
ensure that:
(i) The hoist machine includes a base-mounted drum hoist designed
to control line speed; and
(ii) Whenever it raises or lowers 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 applicant must/would power the hoist machine
by an air, electric, hydraulic, or internal-combustion drive mechanism.
(d) Constant-pressure control switch. The applicant must/would:
(i) Equip the hoist machine with a hand- or foot-operated constant-
pressure control switch (i.e., a "deadman control switch") that stops
the hoist immediately upon release; and
(ii) Protect the control switch to prevent it from activating if
the hoist machine is struck by a falling or moving object.
(e) Line-speed indicator. The applicant must/would:
(i) Equip the hoist machine with an operating line-speed indicator
maintained in proper 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 applicant must/would equip the hoist
machine with two (2) independent braking systems (i.e., one automatic
and one manual) located on the winding side of the clutch or couplings,
with each braking system being capable of stopping and holding 150
percent of the maximum rated load.
(g) Slack-rope switch. The applicant must/would equip the hoist
machine with a slack-rope switch to prevent rotation of the winding
drum under slack-rope conditions.
(h) Frame. The applicant must/would ensure that the frame of the
hoist machine is a self-supporting, rigid, welded-steel structure, and
that holding brackets for anchor lines and legs for anchor bolts are
integral components of the frame.
(i) Stability. The applicant must/would secure hoist machines in
position to prevent movement, shifting, or dislodgement.
(j) Location. The applicant must/would:
(i) Locate the hoist machine far enough from the footblock to
obtain the correct fleet angle for proper spooling of the cable on the
drum; and
(ii) Ensure that the fleet angle remains between one-half degree
(1/2°) and one and one-half degrees (1 1/2°) for smooth
drums, and between one-half degree (1/2°) and two degrees
(2°) for grooved drums, with the lead sheave centered on the
drum.\5\
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\5\ This provision adopts the definition of, and specifications
for, fleet angle from Cranes and Derricks, H. I. Shapiro, et al.
(eds.); New York: McGraw-Hill; 3rd ed., 1999, page 592. Accordingly,
the fleet angle is "[t]he angle the rope leading onto a [winding]
drum makes with the line perpendicular to the drum rotating axis
when the lead rope is making a wrap against the flange."
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(k) Drum and flange diameter. The applicant must/would:
(i) Provide a winding drum for the hoist that is at least 30 times
the diameter of the rope used for hoisting; and
(ii) Ensure that the winding drum has a flange diameter that is at
least one and one-half (1-1/2) times the winding-drum diameter.
(l) Spooling of the rope. The applicant must/would never spool the
rope closer than two (2) inches (5.1 cm) from the outer edge of the
winding-drum flange.
(m) Electrical system. The applicant must/would ensure that all
electrical equipment is weatherproof.
(n) Limit switches. The applicant must/would 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 applicant must/would:
(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,
personnel platform, or boatswain's chair for transportation.
(b) Speed limitations. The applicant must/would not operate the
hoist at a speed in excess of:
(i) Two hundred and fifty (250) feet (76.9 m) per minute when a
personnel cage is being used to transport 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 (i.e., using a
dedicated material-transport device such as a hopper or concrete
bucket).
(c) Communication. The applicant must/would:
(i) Use an electronic voice-communication 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 worksite superintendent
determines that it is safe to do so.
6. Hoist Rope
(a) Grade. The applicant must/would use a wire rope for the hoist
system (i.e., "hoist rope") that consists of extra-improved plow
steel, an equivalent grade of non-rotating rope, or a regular lay rope
with a suitable swivel mechanism.
(b) Safety factor. The applicant must/would maintain a safety
factor of at least eight (8) times the safe workload throughout the
entire length of hoist rope.
(c) Size. The applicant must/would use a hoist rope that is at
least one-half (1/2) inch (1.3 cm) in diameter.
(d) Inspection, removal, and replacement. The applicant must/would:
(i) Thoroughly inspect the hoist rope before the start of each job
and on completing a new setup;
(ii) Maintain the proper diameter-to-diameter ratios between the
hoist rope and the footblock and the sheave by inspecting the wire rope
regularly (see Conditions 7(c) and 8(d), below); and
(iii) Remove and replace the wire rope with new wire rope when any
condition specified by 29 CFR 1926.552(a)(3) occurs.
(e) Attachments. The applicant must/would 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 applicant uses clip fastenings
(e.g., U-bolt wire-rope clips) with wire ropes, it must/would:
(i) Use Table H-20 of 29 CFR 1926.251 to determine the number and
spacing of clips;
(ii) Use at least three (3) drop-forged clips at each fastening;
(iii) Install the clips with the "U" of the clips on the dead end
of the rope; and
(iv) Space the clips so that the distance between them is six (6)
times the diameter of the rope.
7. Footblock
(a) Type of block. The applicant must/would use a footblock:
(i) Consisting of construction-type blocks of solid single-piece
bail with a safety factor that is at least four (4) times the safe
workload, or an equivalent block with roller bearings;
(ii) Designed for the applied loading, size, and type of wire rope
used for hoisting;
(iii) Designed with a guard that contains the wire rope within the
sheave groove;
(iv) Bolted rigidly to the base; and
(v) Designed and installed so that it turns the moving wire rope to
and from the horizontal or vertical direction as required by the
direction of rope travel.
(b) Directional change. The applicant must/would ensure that the
angle of change in the hoist rope from the horizontal to the vertical
direction at the footblock is approximately 90°.
(c) Diameter. The applicant must/would ensure that the line
diameter of the footblock is at least 24 times the diameter of the
hoist rope.
8. Cathead and Sheave
(a) Support. The applicant must/would use a cathead (i.e.,
"overhead support") that consists of a wide-flange beam, or two (2)
steel-channel sections securely bolted back-to-back to prevent
spreading.
(b) Installation. The applicant must/would ensure that:
(i) All sheaves revolve on shafts that rotate on bearings; and
(ii) The bearings are mounted securely to maintain the proper
bearing position at all times.
(c) Rope guides. The applicant must/would provide each sheave with
appropriate rope guides to prevent the hoist rope from leaving the
sheave grooves when the rope vibrates or swings abnormally.
(d) Diameter. The applicant must/would use a sheave with a diameter
that is at least 24 times the diameter of the hoist rope.
9. Guide Ropes
(a) Number and construction. The applicant must/would affix two (2)
guide ropes by swivels to the cathead. The applicant must/would ensure
that the guide ropes:
(i) Consist of steel safety cables not less than one-half (1/2)
inch (1.3 cm) in diameter; and
(ii) Be free of damage or defect at all times.
(b) Guide rope fastening and alignment tension. The applicant must/
would fasten one end of each guide rope securely to the overhead
support, with appropriate tension applied at the foundation.
(c) Height. The applicant must/would rig the guide ropes along the
entire height of the hoist-machine structure.
10. Personnel Cage
(a) Construction. The applicant must/would ensure that the
personnel cage is of steel-frame construction and capable of supporting
a load that is four (4) times its maximum rated load capacity. The
applicant also must/would ensure that the personnel cage has:
(i) A top and sides that are permanently enclosed (except for the
entrance and exit);
(ii) A floor securely fastened in place;
(iii) Walls that consist of 14-gauge, one-half (1/2) inch (1.3
cm) expanded metal mesh, or an equivalent material;
(iv) Walls that cover the full height of the personnel cage between
the floor and the overhead covering;
(v) A sloped roof constructed of one-eighth (1/8) inch (0.3 cm)
aluminum, or an equivalent material;
(vi) Safe handholds (e.g., rope grips--but not rails or hard
protrusions \6\) that accommodate each occupant; and
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\6\ To reduce impact hazards should workers lose their balance
because of cage movement.
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(v) Attachment points to which workers must/would secure their
personal fall protection systems.
(b) Overhead weight. The applicant must/would ensure that the
personnel cage has an overhead weight (e.g., a headache ball of
appropriate weight) to compensate for the weight of the hoist rope
between the cathead and footblock. In addition, the applicant must/
would:
(i) Ensure that the overhead weight is capable of preventing line
run; and
(ii) Use a means to restrain the movement of the overhead weight so
that the weight does not interfere with safe personnel hoisting.
(c) Gate. The applicant must/would ensure that the personnel cage
has a gate that:
(i) Guards the full height of the entrance opening; and
(ii) Has a functioning mechanical lock that prevents accidental
opening.
(d) Operating procedures. The applicant must/would post the
procedures for operating the personnel cage conspicuously at the hoist
operator's station.
(e) Capacity. The applicant must/would:
(i) Hoist no more than four (4) occupants in the cage at any one
time; and
(ii) Ensure that the rated load capacity of the cage is at least
250 pounds (113.4 kg) for each occupant so hoisted.
(f) Worker notification. The applicant must/would 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 applicant must/would:
(i) Conduct static drop tests of each personnel cage that comply
with the definition of "static drop test" specified by section 3
("Definitions") and the static drop test procedures provided in
Section 13 ("Inspections and Tests") of American National Standards
Institute (ANSI) standard A10.22-1990 (R1998) ("American National
Standard for Rope-Guided and Non-Guided 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 applicant must/would:
(i) Fit appropriately designed and constructed safety clamps to the
guide ropes; and
(ii) Ensure that the safety clamps do not damage the guide ropes
when in use.
(b) Attach to the personnel cage. The applicant must/would attach
safety clamps to each personnel cage for gripping the guide ropes.
(c) Operation. The applicant must/would ensure that the safety
clamps attached to the personnel cage:
(i) Operate on the "broken rope principle" defined in section 3
("Definitions") of ANSI standard A10.22-1990 (R1998);
(ii) Be capable of stopping and holding a personnel cage that is
carrying 100 percent of its maximum rated load and traveling at its
maximum allowable speed if the hoist rope breaks at the footblock; and
(iii) Use a pre-determined and pre-set clamping force (i.e., the
"spring compression force") for each hoist system.
(d) Maintenance. The applicant must/would keep the safety clamp
assemblies clean and functional at all times.
12. Overhead Protection
(a) The applicant must/would install a canopy or shield over the
top of the personnel cage that is made of steel plate at least three-
sixteenth (3/16) of an inch (4.763 mm) thick, or material of
equivalent strength and impact resistance, to protect workers (i.e.,
both inside and outside the chimney) from material and debris that may
fall from above.
(b) The applicant must/would ensure that the canopy or shield
slopes to the outside of the personnel cage.
13. Emergency-Escape Device
(a) Location. For workers using a personnel cage, the applicant
must/would provide an emergency-escape device in at least one of the
following locations:
(i) In the personnel cage, provided that the device is long enough
to reach the bottom landing from the highest possible escape point; or
(ii) At the bottom landing, provided that a means is available in
the personnel cage for the occupants to raise the device to the highest
possible escape point.
(b) Operating instructions. The applicant must/would ensure that
written instructions for operating the emergency-escape device are
attached to the device.
(c) Training. The applicant must/would 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
When the applicant elects to replace the personnel cage with a
personnel platform in accordance with Condition 2(a), above, they must/
would:
(a) Ensure that an enclosure surrounds the platform, and that this
enclosure is at least 42 inches (106.7 cm) above the floor of the
platform;
(b) Provide overhead protection when an overhead hazard is, or
could be, present; and
(c) Comply with the applicable scaffolding strength requirements
specified by 29 CFR 1926.451(a)(1).
15. Protecting Workers From Fall and Shearing Hazards
(a) Fall hazards. The applicant must/would:
(i) Before workers use personnel cages, personnel platforms, or
boatswain's chairs, equip the workers with, and ensure that they use,
personal fall arrest systems that meet the requirements of 29 CFR
1926.502(d);
(ii) Ensure that workers using personnel cages secure their
personal fall arrest systems to attachment points located inside the
cage;
(iii) Ensure that workers using personnel platforms and boatswain's
chairs secure their personal fall arrest systems to a vertical
lifeline; and
(iv) When using vertical lifelines:
(A) Secure the lifelines to the top of the chimney;
(B) Weight the lifelines properly or suitably affix the lifelines
to the bottom of the chimney; and
(C) Ensure that workers remain attached to their lifeline during
the entire period of vertical transit.
(b) Shearing hazards. The applicant must/would:
(i) 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;
(ii) Provide the instruction on shearing hazards:
(A) Before a worker uses a personnel platform or boatswain's chair
at the worksite; and
(B) Periodically, and as necessary, thereafter, including whenever
a worker demonstrates a lack of knowledge about the hazard or how to
avoid it, a modification occurs to an existing shearing hazard, or a
new shearing hazard develops at the worksite; and
(iii) Attach a readily visible warning to each personnel platform
and boatswain's chair notifying workers in a language they understand
of potential shearing hazards they may encounter during hoisting
operations, and that uses the following (or equivalent) wording:
(A) 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
(B) For boatswain's chairs: "Warning--To avoid serious injury, do
not extend your hands, arms, feet, legs, or other parts your body from
the side or to the front of this chair while it is in motion."
16. Exclusion Zone
The applicant must/would:
(a) Establish a clearly designated exclusion zone around the bottom
landing of the hoist system; and
(b) Prohibit any worker from entering the exclusion 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).
17. Inspections, Tests, and Accident Prevention
(a) The applicant must/would:
(i) Conduct inspections of the hoist system as required by 29 CFR
1926.20(b)(2);
(ii) Ensure that a competent person conducts daily visual
inspections of the hoist system; and
(iii) Inspect and test the hoist system as specified by 29 CFR
1926.552(c)(15).
(b) The applicant must/would comply with the accident prevention
requirements of 29 CFR 1926.20(b)(3).
18. Welding
(a) The applicant must/would ensure that only qualified welders
weld components of the hoisting system.
(b) The applicant must/would ensure that the qualified welders:
(i) Are familiar with the weld grades, types, and materials
specified in the design of the system; and
(ii) Perform the welding tasks in accordance with 29 CFR part 1926,
subpart J ("Welding and Cutting").
19. OSHA Notification
(a) At least 15 calendar days prior to commencing any chimney
construction operation using the conditions specified herein, the
applicant must/would 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) The applicant must/would 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.
V. 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. 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. 5-2007 (72 FR 31160), and 29 CFR part 1905.
Signed at Washington, DC, on November 2, 2009.
Jordan Barab,
Acting Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. E9-26930 Filed 11-6-09; 8:45 am]
BILLING CODE 4510-26-P
