OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.

March 24, 1999

Mr. Phillip J. Pekron, CIH, CSP
KETER Consultants Inc.
8270 Archer Ave
Willow Springs, IL 60480

Dear Mr. Pekron,

This is in response to your letter of 10 February, 1999 requesting clarification of interpretation of OSHA standard 29 CFR 1910.179(n)(3)(vi).

OSHA standard 29 CFR 1910.179(n)(3)(vi) states, "The employer shall require that the operator avoid carrying loads over people." This is required to protect people from the hazard of a falling load due to inadvertent failure of the crane mechanism or operator error.

To protect employees working in an enclosed cage which has its structural integrity verified by a professional engineer, you must submit a written application to OSHA to obtain a variance from the OSHA standards, for carrying indeterminate loads over these employees. There is not enough information in you letter to act as an application. However, we will review your application for granting a variance from paragraph 1910.179(n)(3)(vi) of OSHA standards.

The Occupational Safety and Health Act of 1970 grants the agency the discretion to grant an employer an exemption to OSHA regulations in certain instances. Variances are granted in three forms: temporary, permanent and for reasons of national defense (29 U.S.C. 655(b)(6)(A), 655(d) and 655). You are probably interested in obtaining a permanent variance.

To qualify for a permanent variance, the employer must prove that alternative practices or equipment will provide a work environment which is safe and healthful as one that complied with the standard. The variance, if granted, is narrow in scope and will specify the conditions the employer must meet and/or the alternative practices it must adopt to receive such protection.

OSHA has published specific agency rules and procedures for applying for a variance from a regulation in the Federal Register. These rules can be found at 29 CFR Part 1905. I have enclosed a copy of Part 1905 for your review. OSHA has an extensive web site on the Internet, which is a valuable source of information on agency activity. I have enclosed information about variances downloaded from our site. Please feel free to visit our web at www.osha.gov.

Thank you for your interest in Occupational Safety and Health Administration. If you have any questions, please contact Jennifer C. Silk at (202) 693-2110.

Sincerely,

Richard E. Fairfax, Director
Directorate of Compliance Programs