
[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

[[Page 57705]]

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

[[Page 57706]]

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

[[Page 57707]]

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

[[Page 57708]]

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\
---------------------------------------------------------------------------

    \4\ In these conditions, the verb ``must'' applies to the 
interim order, while the verb ``would'' pertains to the application 
for a permanent variance.
---------------------------------------------------------------------------

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

[[Page 57709]]

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\[deg]) and one and one-half degrees (1\1/2\[deg]) for smooth 
drums, and between one-half degree (\1/2\[deg]) and two degrees 
(2[deg]) for grooved drums, with the lead sheave centered on the 
drum.\5\
---------------------------------------------------------------------------

    \5\ This provision adopts the definition of, and specifications 
for, fleet angle from Cranes and Derricks, H. I. Shapiro, et al. 
(eds.); New York: McGraw-Hill; 3rd ed., 1999, page 592. Accordingly, 
the fleet angle is ``[t]he angle the rope leading onto a [winding] 
drum makes with the line perpendicular to the drum rotating axis 
when the lead rope is making a wrap against the flange.''
---------------------------------------------------------------------------

    (k) Drum and flange diameter. The 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:

[[Page 57710]]

    (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[deg].
    (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
---------------------------------------------------------------------------

    \6\ To reduce impact hazards should workers lose their balance 
because of cage movement.
---------------------------------------------------------------------------

    (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

[[Page 57711]]

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,

[[Page 57712]]

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
