
[Federal Register Volume 78, Number 191 (Wednesday, October 2, 2013)]
[Notices]
[Pages 60900-60918]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23625]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2012-0015]


Kiewit Power Constructors Co. et al. (Avalotis Corp., Bowen 
Engineering Corporation, Commonwealth Dynamics, Inc., Gibraltar Chimney 
International, LLC, Hamon Custodis, Inc., Hoffmann, Inc., International 
Chimney Corporation, Karrena International Chimney, Matrix SME, Inc., 
NAES Power Contractors, Pullman Power, LLC, R and P Industrial Chimney 
Co., Inc., T. E. Ibberson Company, TIC--The Industrial Company); Grant 
of a Permanent Variance

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

ACTION: Notice of grant of a permanent variance.

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SUMMARY: This notice announces the grant of a permanent variance to 
Avalotis Corp., Bowen Engineering Corporation, Commonwealth Dynamics, 
Inc., Gibraltar Chimney International, LLC, Hamon Custodis, Inc., 
Hoffmann, Inc., International Chimney Corporation, Karrena 
International Chimney, Kiewit Power Constructors Co., Matrix SME, Inc., 
NAES Power Contractors, Pullman Power, LLC, R and P Industrial Chimney 
Co., Inc., T. E. Ibberson Company, TIC--The Industrial Company (``the 
employers''). From 1973 to the present, the Occupational Safety and 
Health Administration (OSHA or the Agency) granted permanent variances 
to a number of chimney-construction companies 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. These variances use temporary personnel hoist systems to 
transport workers to and from worksites in a personnel cage while 
constructing chimneys of various configurations using jump-form 
construction techniques and procedures. The Agency received 
applications from 15 employers for a variance addressing chimney and 
chimney-related construction that, like the previous variances, propose 
to use temporary personnel hoist systems to transport workers to and 
from worksites in a personnel cage. These variance applications, 
however, included conditions that address construction of chimneys and 
chimney-related structures using temporary hoist systems and procedures 
in association with two different methods of construction (i.e., jump-
form and slip-form construction), regardless of the structures' 
configurations (i.e., tapered or straight-barreled of any diameter). 
OSHA consolidated these variance applications into a single application 
and published the application and request for comments in the Federal 
Register on March 21, 2013 (78 FR 17432).
    After considering the record as a whole, OSHA finds that these 
alternative conditions protect workers at least as well as the 
requirements specified by 29 CFR 1926.452(o)(3) and 29 CFR 
1926.552(c)(1) through (c)(4), (c)(8), (c)(13), (c)(14)(i), and 
(c)(16). This permanent variance applies in Federal OSHA enforcement 
jurisdictions and in those states and territories with OSHA-approved 
State-Plans covering private-sector employers that have identical 
standards and agree to the terms of the variance.

DATES: The permanent variance is effective on October 2, 2013.

FOR FURTHER INFORMATION CONTACT: 
    General information and press inquiries. For general information 
and press inquiries about this notice, contact Frank Meilinger, 
Director, OSHA Office of Communications, U.S. Department of Labor, 200 
Constitution Avenue NW., Room N-3647, Washington, DC 20210; telephone: 
(202) 693-1999.
    Technical information. For technical information about this notice, 
contact Stefan Weisz, Office of Technical Programs and Coordination 
Activities, OSHA, U.S. Department of Labor, 200 Constitution Avenue 
NW., Room N-3655, Washington, DC 20210; telephone: (202) 693-2110; fax: 
(202) 693-1644.
    Copies of this Federal Register notice. Electronic copies of this 
Federal Register notice are available at http://www.regulations.gov. 
This Federal Register notice, as well as news releases and other 
relevant information, also are available at OSHA's Web page at http://www.osha.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    Fifteen companies (or applicants) submitted applications 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 Document ID Nos. OSHA-2012-
0015-0002 to -0019 \1\). The applicants construct, renovate, repair, 
maintain, inspect, and demolish tall chimneys and similar structures 
made of concrete, brick, and steel. This work, which occurs throughout 
the United States, requires the applicants to transport employees and 
construction tools and materials to and from elevated worksites located 
inside and outside these structures. The following list provides 
specific information about each applicant, including the company name 
and location:
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    \1\ In Docket No. OSHA-2012-0015 for this variance application.

Avalotis Corp; 400 Jones Street, Verona, PA 15147
Bowen Engineering Corporation (merged with Mid-Atlantic Boiler & 
Chimney, Inc., (formerly Alberici Mid-Atlantic, LLC)), 8802 N. Meridian 
St.Indianapolis, IN 46260
Commonwealth Dynamics, Inc., 95 Court Street, Portsmouth, NH 03801,
Gibraltar Chimney International, LLC, 92 Cooper Ave. Tonawanda, NY 
14150

[[Page 60901]]

Hamon Custodis, Inc. (formerly Custodis Construction Co., Inc., then 
Custodis Cuttrell, Inc.), 58 East Main Street, Somerville, NJ 08876
Hoffmann, Inc., 6001 49th Street South, Muscatine, IA 52761
International Chimney Corporation, 55 South Long Street, Williamsville, 
NY 14221
Karrena International Chimney, 57 South Long Street, Williamsville, NY 
14221
Kiewit Power Constructors Co., 9401 Renner Blvd., Lenexa, KS 66219
Matrix SME, Inc. (formerly Matrix Service Industrial Contractors, 
Inc.), 1510 Chester Pike, Suite 500, Eddystone, PA 19022
NAES Power Contractors (formerly American Boiler and Chimney Company), 
167 Anderson Rd., Cranberry Township, PA 16066
Pullman Power, LLC (formerly M. W. Kellogg Co., then Pullman Power 
Products Corporation), 6501 E. Commerce Avenue, Suite 200, Kansas City, 
MO 64120
R and P Industrial Chimney Co., Inc., 244 Industrial Parkway, 
Nicholasville, KY 40356
T. E. Ibberson Company, 828 5th St. South, Hopkins, MN 55343
TIC--The Industrial Company, 9780 Mt. Pyramid Ct., Suite 100, 
Englewood, CO 80112

    The applicants seek a permanent variance from paragraphs (o)(3) of 
29 CFR 1926.452, which regulates the tackle used to rig a boatswain's 
chair, as well as (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 
paragraphs specify the following requirements:
     (o)(3)--Requirements for the tackle used to rig a 
boatswain's chair;
     (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 
to the hoistway and cars;
     (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 applicants contend that the permanent variance would provide 
their employees with a place of employment that is at least as safe and 
healthful as they would receive under the existing provisions.
    The places of employment affected by this variance application are 
the present and future projects where the applicants construct chimneys 
and chimney-related structures using jump-form and slip-form 
construction \2\ techniques and procedures, regardless of structural 
configuration when such construction involves the use of temporary 
personnel hoist systems. These projects would be in states under 
federal authority, as well as State-Plan states that have safety and 
health plans approved by OSHA under Section 18 of the Occupational 
Safety and Health (OSH) Act (29 U.S.C. 667) and 29 CFR part 1952 
(``Approved State Plans for Enforcement of State Standards''), and that 
have plans covering private-sector employers and standards identical to 
the standards that are the subject of this variance, and that agree to 
the terms of the variance.
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    \2\ Throughout this notice, OSHA uses the terms ``jump-form 
construction'' and ``slip-form construction'' instead of ``jump-form 
formwork construction'' and ``slip-form formwork construction,'' 
respectively.
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    The permanent variance permits the employers to operate temporary 
hoist systems to raise and lower workers to and from elevated worksites 
on chimneys, chimney linings, stacks, silos, and chimney-related 
structures such as towers and similar structures constructed using 
jump-form and slip-form construction techniques and procedures 
regardless of structural configuration of the structure (such as 
tapered or straight barreled of any diameter). This variance also 
provides consistent conditions across the employers named in this 
application. OSHA published the employers' variance applications and 
request for comments in the Federal Register on March 21, 2013 (78 FR 
17432).

II. Multi-State Variance

    The applicants state that they perform chimney and other related 
construction 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.). 
State Plans and territories have primary enforcement responsibility 
over the work performed in those states and territories. Under the 
provisions of 29 CFR 1952.9 (``Variance affecting multi-state 
employers'') and 29 CFR 1905.14(b)(3) (``Actions on applications''), a 
permanent variance granted by the Agency becomes effective in State-
Plans and territories as an authoritative interpretation of the 
applicants' compliance obligation when: (1) The relevant standards are 
the same as the Federal OSHA standards from which the applicants are 
seeking the permanent variance; and (2) the State-Plan or territory 
does not object to the terms of the variance application.
    OSHA received one comment on the variance application from the 
state of Michigan (see Document ID No. OSHA-2012-0015-0022). OSHA 
continues to assume that, absent additional comments received to the 
contrary, the state's position regarding grant of this permanent 
variance is the same as its position regarding grant of prior variances 
involving chimney construction.
    As noted above and in section IV of this notice (``Comments on 
Proposed Variance Application''), OSHA received just one comment on the 
variance application published in the Federal Register (78 FR 17432) 
from any state State-Plan or territory. However, several State Plans 
and territories commented on earlier variance applications published in 
the Federal Register involving the same standards and submitted by 
other employers engaged in chimney construction and repair; OSHA is 
relying on these previous comments to determine the position of these 
State Plans and territories on the variance applications submitted by 
the present employers. The remaining paragraphs in this section provide 
a summary of the positions taken by the State Plans and territories on 
the proposed alternative conditions.
    Twenty-seven states and territories have OSHA-approved safety and 
health programs.\3\ In this regard, 17 State Plans and 1 territory have 
standards identical to the Federal OSHA standards: Alaska, Arizona, 
Hawaii, Indiana, Iowa, Kentucky, Maryland, Minnesota, Nevada, New 
Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, 
Vermont, Virginia, and Wyoming. However, Hawaii and Iowa previously 
declined to accept the terms of variances for chimney-related 
construction work granted previously by Federal OSHA. Kentucky stated 
that its statutory law requires affected employers to apply to the 
state for a state variance. South Carolina noted that, for the South 
Carolina Commissioner of Labor to accept a Federal OSHA grant of a 
variance,

[[Page 60902]]

employers must file the grant at the Commissioner's office in Columbia, 
South Carolina. Employers must comply with any special variance 
procedures required by these states prior to initiating chimney-related 
construction work addressing the conditions specified by this variance. 
The permanent Federal OSHA variance will be effective in the following 
thirteen State-Plan States and one Territory: Alaska, Arizona, Indiana, 
Maryland, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto 
Rico, Tennessee, Virginia, Vermont, and Wyoming.
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    \3\ Four State-Plan states (Connecticut, Illinois, New Jersey, 
and New York) and one territory (Virgin Islands) limit their 
occupational safety and health authority to public-sector employers 
only. State-Plan states and territories that exercise their 
occupational safety and health authority over private-sector 
employers 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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    Four states (California, Michigan, Utah, and Washington) have 
different requirements for chimney-related construction work than 
Federal OSHA standards. In its comments (Document ID No. OSHA-2012-
0015-0022), Michigan noted that its standards are not identical to the 
OSHA standards, and those employers electing to use a variance in that 
state must comply with several provisions in the Michigan standards not 
addressed in the OSHA standards. Additionally, Michigan stated that 
employers who operate under the OSHA variance in Michigan also must 
obtain a Michigan Occupational Safety and Health Administration 
variance (see Michigan Rules 1065(a)(1), 1065(a)(2), and 1072(a)(15)).
    In comments on earlier variance applications, Utah also imposed 
specific additional requirements in the past when Federal OSHA granted 
similar variances for chimney-related construction work.\4\ California 
and Washington declined to accept the terms of variances for chimney-
related construction work granted by Federal OSHA in the past.\5\ 
Employers, therefore, must apply separately to these states for a 
variance from construction work on structures covered by this variance.
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    \4\ See 68 FR 52961 (Oak Park Chimney Corp. and American Boiler 
& Chimney Co.)
    \5\ See 70 FR 72659 (International Chimney Corporation, Karrena 
International, LLC, and Matrix Service Industrial Contractors, 
Inc.), 71 FR 10557 (Commonwealth Dynamics, Inc., Mid-Atlantic Boiler 
& Chimney, Inc., and R and P Industrial Chimney Co., Inc.), and 75 
FR 22424 (Avalotis Corp.).
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    The remaining State Plans and territories with OSHA-approved state 
plans (Connecticut, Illinois, New Jersey, New York, and the Virgin 
Islands) cover only public-sector workers and have no authority over 
the private-sector workers addressed in this variance (i.e., that 
authority continues to reside with Federal OSHA).

III. Supplementary Information

A. Previous Chimney-Construction Variances

    From 1973 to the present, the Agency granted permanent variances to 
a number of chimney-construction companies from the provisions of the 
OSHA standards that regulate boatswains' chairs, personnel platforms, 
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.\6\ The National Stack and Chimney Safety 
and Health Advisory Committee reports \7\ that four of its member 
companies (i.e., Pullman Power, Hamon Custodis, International Chimney 
Corp, and Commonwealth Constructors) using temporary personnel hoist 
systems in accordance with the conditions of the present permanent 
variances for chimney-related construction work had no recordable 
injuries or fatalities (as reported on the OSHA 300 Forms \8\) over the 
past seven years.
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    \6\ See 38 FR 8545 (April 3, 1973), 44 FR 51352 (August 31, 
1979), 50 FR 20145 (May 14, 1985), 50 FR 40627 (October 4, 1985), 52 
FR 22552 (June 12, 1987), 68 FR 52961 (September 8, 2003), 70 FR 
72659 (December 6, 2005), 71 FR 10557 (March 1, 2006), 72 FR 6002 
(February 8, 2007), 74 FR 34789 (July 17, 2009), 74 FR 41742 (August 
18, 2009), and 75 FR 22424 (April 28, 2010)).
    \7\ Private communication from Mr. John Huchko, Secretary of the 
National Stack and Chimney Safety and Health Advisory Committee, 
January 2, 2013.
    \8\ See 29 CFR part 1904, Recording and Reporting Occupational 
Injuries and Illnesses.
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    OSHA generally based the alternative conditions in the variances 
granted by this notice on the alternative conditions included in 
previous variances. However, several of the previous variances (for 
example, 38 FR 8545 granted April 3, 1973, and 71 FR 10557 granted 
March 1, 2006) included conditions that did not limit the use of the 
variance to the construction of tapered chimneys, and did not specify 
any methods of construction. Conditions included in recently granted 
chimney-construction variances limited the scope of the variance to the 
construction of tapered chimneys using jump-form construction 
techniques and procedures. For example, this limitation applied to the 
Avalotis Corp. variance (75 FR 22424; April 28, 2010) used for 
comparison purposes in this variance.
    The alternative conditions specified in the permanent variance 
granted by this notice apply to chimney-related construction, including 
work on chimneys, chimney linings, stacks, silos, towers, and similar 
structures, built using jump-form and slip-form construction methods of 
construction, regardless of the structural configuration, and that 
involve the use of temporary personnel hoist systems.

B. Kiewit Variance Application

    On February 8, 2007, OSHA published a variance application 
submitted by Kiewit Power Constructors Co. (Kiewit; see 72 FR 6002). 
This publication included an interim order that permitted Kiewit to use 
a rope-guided hoist system to transport employees to elevated worksites 
when it complies with the conditions specified in the variance 
application. One of the conditions specified in the publication limited 
the application and interim order to tapered chimneys, which was the 
basis for previous variances granted by OSHA to other chimney-
construction companies (see subsection A (Background) of this section 
for a discussion of previously granted chimney variances). Kiewit 
notified OSHA on February 23, 2007, that it required a permanent 
variance to perform work on small-diameter, straight-barreled chimneys 
built using conventional jump-form construction techniques and 
procedures and straight-barreled chimneys of any diameter built using 
slip-form construction techniques and procedures, as well as tapered 
chimneys constructed using jump-form construction techniques and 
procedures. Kiewit submitted a revised variance application addressing 
the conditions included in previously granted chimney-construction 
variances to OSHA on March 1, 2007 (superseded by Kiewit's variance 
application of November 16, 2012; see Exhibit No. OSHA-2012-0015-0011).
    According to its March 1, 2007, variance application, Kiewit was 
seeking a variance from the provisions of OSHA standards that regulate 
boatswain's chairs and hoist towers for the construction of small-
diameter, straight-barreled chimneys constructed using jump-form 
construction techniques and procedures, and chimneys of any diameter 
constructed using slip-form construction techniques and procedures. 
Regarding small-diameter, straight-barreled chimneys constructed using 
jump-form construction techniques and procedures, Kiewit contended that 
the extreme height and limited space inside these chimneys make it 
infeasible to attach a hoist tower to the interior walls of the 
chimneys during construction. In some cases, it also is infeasible to 
use a personnel cage in such small-diameter, straight-barreled 
chimneys. Under these conditions, Kiewit proposed to adopt alternative 
measures of complying with

[[Page 60903]]

the relevant boatswain's-chair and personnel-platform requirements.
    With respect to straight-barreled chimneys constructed using slip-
form construction techniques and procedures, Kiewit asserted that the 
unique techniques and procedures involved in slip-form construction 
make it difficult and unsafe to attach a hoist tower to both the 
interior and exterior walls of a chimney during construction. Slip-form 
construction is an alternative to using jump-form construction 
techniques and procedures to shape concrete structures, including 
chimney walls. When using slip-form techniques and procedures to 
construct chimney walls, Kiewit pours concrete into forms attached to a 
platform that moves slowly up either climbing rods imbedded in the 
previously poured concrete wall or a mast secured to the interior floor 
of the structure. Kiewit's employees operate the platform, pour the 
fresh concrete, inspect the formed concrete, and perform other tasks 
both inside and outside the chimney from a work deck on the platform, 
as well as from scaffolds hung from the platform. As a result of this 
progressive construction process, the concrete wall immediately below 
the platform for a distance of 20 to 30 feet is insufficiently cured to 
safely attach a hoist tower to the wall. Consequently, during slip-form 
construction, it is unsafe to attach a hoist tower either inside or 
outside the chimney wall for the purpose of transporting employees to 
elevated worksites, at least for the last 20 to 30 feet of elevation.
    Kiewit proposed to use a rope-guided hoist system to raise and 
lower personnel-transport devices \9\ when constructing chimneys using 
jump-form construction techniques and procedures. This system would 
consist of a hoist engine, located and controlled outside the chimney, 
to power the rope-guided hoist system. 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 plane; goes from the footblock through the 
overhead sheaves above the elevated platform at the cathead; and 
finally drops to the bottom landing of the chimney where it connects to 
the personnel or material transport.\10\ The cathead, which is a 
superstructure at the top of a derrick, supports the overhead sheaves. 
The overhead sheaves (and the vertical span of the hoist system) move 
upward with the derrick as chimney construction progresses. Two guide 
ropes, suspended from the cathead, eliminate swaying and rotation of 
the load (including a cage). If the hoist rope breaks, safety clamps 
activate and grip the guide ropes to prevent the load from falling. 
Kiewit 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.
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    \9\ Throughout this document, ``rope'' refers only to wire rope.
    \10\ While Kiewit proposed to use temporary personnel hoist 
systems solely to transport employees with the tools and materials 
necessary to do their work (i.e., Kiewit would not use these systems 
to transport only materials or tools in the absence of employees), 
it would attach a hopper or concrete bucket to the empty cage to 
raise or lower material to the worksite.
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    Kiewit proposed to implement additional conditions to improve 
employee safety, including:
     Attaching the wire rope to the personnel cage using a 
keyed-screwpin shackle or positive-locking link;
     Adding limit switches to the hoist system to prevent 
overtravel by the personnel-transport or material-transport devices;
     Providing the safety factors and other precautions 
required for personnel hoists as specified by the pertinent provisions 
of 29 CFR 1926.552(c), including canopies and shields to protect 
employees located in a personnel cage from material that may fall 
during hoisting and other overhead activities;
     Providing falling-object protection for personnel 
platforms as specified by 29 CFR 1926.451(h)(1);
     Conducting tests and inspections of the hoist system as 
required by 29 CFR 1926.20(b)(2) and 1926.552(c)(15);
     Establishing an accident-prevention program that conforms 
to 29 CFR 1926.20(b)(3);
     Ensuring that employees who use a personnel platform or 
boatswain's chair wear full-body harnesses and lanyards, and that they 
attach the lanyards to independent lifelines during the entire period 
of vertical transit; and
     Securing the lifelines (used with a personnel platform or 
boatswain's chair) to the rigging at the top of the chimney and to a 
weight at the bottom of the chimney to provide maximum stability to the 
lifelines.
    Paragraph (c) of 29 CFR 1926.552 specifies the requirements for 
enclosed hoist systems used to transport personnel from one elevation 
to another. This paragraph ensures that employers transport employees 
safely to and from elevated work platforms by mechanical means during 
the construction, alteration, repair, maintenance, or demolition of 
structures such as chimneys. However, this paragraph does not provide 
specific safety requirements for hoisting personnel to and from 
elevated work platforms and scaffolds used in straight-barreled 
chimneys constructed using jump-form or slip-form construction 
techniques and procedures, which require frequent relocation of, and 
adjustment to, work platforms and scaffolds. Kiewit contended in its 
variance application that the great height and limited space of small-
diameter, straight-barreled chimneys built using jump-form construction 
techniques and procedures make it infeasible to attach a hoist tower to 
the interior walls of these chimneys during construction. With respect 
to chimneys constructed using slip-form techniques and procedures, 
Kiewit asserted that, because of the progressive process involved in 
constructing these chimneys, the concrete wall immediately below the 
work platform for a distance of 20 to 30 feet is insufficiently cured 
to safely attach a hoist tower. Consequently, Kiewit cannot attach a 
hoist tower securely to either the inside or outside of the chimney 
wall for the purpose of transporting employees to the work platform, at 
least for the last 20 to 30 feet of elevation.
    Paragraph (c)(1) of 29 CFR 1926.552 requires employers to enclose 
hoist towers 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. Paragraph (c)(2) specifies that employers must enclose all four 
sides of a hoist tower. This enclosure also must extend the full height 
of the tower. Again, Kiewit argued that these paragraphs are 
inapplicable because constructing hoist towers inside small-diameter, 
straight-barreled chimneys is infeasible, while attaching hoist towers 
to either the inside or outside walls of chimneys constructed using 
slip-form techniques and procedures is impossible, at least for the 
last 20 or 30 feet of elevation.
    As an alternative to complying with the hoist-tower requirements of 
29 CFR 1926.552(c)(1) and (c)(2), Kiewit proposed to use the rope-
guided hoist system described previously in this preamble to transport 
its employees to and from elevated work platforms and scaffolds. Use of 
this hoist system would eliminate the need for Kiewit to comply with 
other provisions of 29 CFR 1926.552(c) that specify requirements for 
hoist towers. Therefore, Kiewit requested a permanent variance from 
these other provisions, as follows:
     (c)(3)--Anchoring the hoist tower to a structure;
     (c)(4)--Hoistway doors or gates;

[[Page 60904]]

     (c)(8)--Electrically interlocking entrance doors or gates 
that prevent hoist movement when the doors or gates are open;
     (c)(13)--Emergency stop switch located in the car;
     (c)(14)(i)--Using a minimum of two wire ropes for drum-
type hoisting; and
     (c)(16)--Construction specifications for personnel hoists, 
including materials, assembly, structural integrity, and safety 
devices.

C. The Current Variance Application

    The conditions in the current variance differ from the conditions 
included in the most recent permanent variance granted by OSHA for 
chimney construction, which was to Avalotis Corp. (75 FR 22424). The 
following table provides a brief summary of the differences between the 
conditions in the Avalotis variance and the conditions described in the 
current variance.

----------------------------------------------------------------------------------------------------------------
                                              Conditions in the current
   Conditions in the Avalotis variance          variance application              Differences in conditions
----------------------------------------------------------------------------------------------------------------
1. Scope of the Permanent Variance......  1. Scope........................  Broadens the scope to include work
                                                                             on chimneys and chimney-related
                                                                             structures built using jump-form
                                                                             and slip-form construction
                                                                             techniques and procedures,
                                                                             regardless of structural
                                                                             configuration; does not limit the
                                                                             scope to tapered chimneys, built
                                                                             using jump-form construction
                                                                             techniques and procedures, which
                                                                             was the limitation imposed by the
                                                                             Avalotis variance.
2. Replacing a Personnel Cage With a      2. Application..................  New condition; addresses the
 Personnel Platform or a Boatswain's                                         application of the variance, and
 Chair.                                                                      specifies a number of best
                                                                             practices and other requirements
                                                                             employers must meet for the
                                                                             variance to apply. Also provides
                                                                             the option of replacing a personnel
                                                                             cage with a personnel platform or a
                                                                             boatswain's chair for the
                                                                             construction of tapered chimneys
                                                                             only.
3. Definitions..........................  3. Definitions..................  New condition; defines 29 key terms,
                                                                             usually technical terms, used in
                                                                             the variance to standardize and
                                                                             clarify the meaning of these terms.
4. Qualified Competent Person...........  4. Qualified Person and           Corrects the inadvertent use of the
                                           Competent Person.                 combined term ``qualified competent
                                                                             person'' used in the Avalotis
                                                                             variance and distinguishes between
                                                                             the terms ``qualified person'' and
                                                                             ``competent person.''
5. Hoist Machine........................  5. Hoist Machine................  Updates the requirements for the
                                                                             design and use of hoist machines
                                                                             based on guidance provided by ANSI
                                                                             A10.22-2007.
6. Methods of Operation.................  6. Methods of Operation.........  Expands and clarifies the training
                                                                             requirements for both the operators
                                                                             of the hoist machine and the
                                                                             employees who ride in the cage. The
                                                                             condition adopts several provisions
                                                                             of ANSI A10.22-2007.
7. Hoist Rope...........................  7. Hoist Rope...................  Revises the safety factor used for
                                                                             the hoist rope and updates the
                                                                             requirements for rope lay based on
                                                                             guidance provided by ANSI A10.22-
                                                                             2007.
8. Footblock............................  8. Footblock....................  Revises the safety factor for rated
                                                                             workloads and updates the
                                                                             requirements for the design and use
                                                                             of footblocks based on guidance
                                                                             provided by ANSI A10.22-2007.
9. Cathead and Sheave...................  9. Cathead and Sheaves..........  Revises the requirements for the
                                                                             design and use of catheads and
                                                                             sheaves based on guidance provided
                                                                             by ANSI A10.22-2007.
10. Guide Ropes.........................  10. Guide Ropes.................  Revises the requirements for the
                                                                             design and use of guide ropes based
                                                                             on guidance provided by ANSI A10.22-
                                                                             2007.
11. Personnel Cage......................  11. Personnel Cage..............  Revises the requirements for the
                                                                             design and use of personnel cages
                                                                             based on guidance provided by ANSI
                                                                             A10.22-2007.
12. Safety Clamps.......................  12. Safety Clamps...............  Minor revisions and clarification of
                                                                             terms.
13. Overhead Protection.................  13. Overhead Protection.........  Contains a new requirement, in
                                                                             performance-based language,
                                                                             providing overhead protection for
                                                                             workers accessing the bottom
                                                                             landing.
14. Emergency-Escape Device.............  14. Emergency-Escape Device.....  Minor revisions and clarification of
                                                                             terms.
15. Personnel Platforms.................  15. Personnel Platforms and       Contains new provisions for the use
                                           Boatswain's Chairs.               of a personnel platform or a
                                                                             boatswain's chair by requiring
                                                                             compliance with the applicable
                                                                             portions of 29 CFR 1926.1431 and
                                                                             1926.452(o)(3).
16. Protecting Workers From Fall and      16. Protecting Workers from Fall  Minor revisions.
 Shearing Hazards.                         and Shearing Hazards.
17. Exclusion Zone......................  17. Exclusion Zone..............  Specifies new requirements for
                                                                             establishing an exclusion zone.
18. Inspections, Tests, and Accident      18. Inspections, Tests, and       Expands and describe the inspection,
 Prevention.                               Accident Prevention.              test, and accident-prevention
                                                                             requirements.
19. Welding.............................  19. Welding.....................  Adds definition for ``qualified''
                                                                             welder.

[[Page 60905]]

 
20. OSHA Notification...................  20. OSHA Notification...........  Revises the requirements for, and
                                                                             description of, employers' duty to
                                                                             notify OSHA of events and
                                                                             conditions associated with their
                                                                             hoisting operations.
----------------------------------------------------------------------------------------------------------------

    The remainder of this section provides additional detail about the 
conditions in this permanent variance and distinguishes, as 
appropriate, between these conditions and the conditions in the 
Avalotis variance.\11\
---------------------------------------------------------------------------

    \11\ The discussion below will refer to the Avalotis variance 
and its conditions using the terms ``former'' and ``formerly.''
---------------------------------------------------------------------------

1. Condition 1: Scope
    Several important revisions occur in the first condition covering 
the scope of the variance. Condition 1(a) of the variance broadens the 
scope of the former variance to include work on chimneys and chimney-
related structures constructed using jump-form and slip-form 
construction techniques and procedures regardless of a structure's 
configuration when the work involves using temporary personnel hoist 
systems. The permanent variance, therefore, does not limit the scope to 
structural configurations (such as small or large diameter, and tapered 
or straight-barreled, chimneys), which was the limitation imposed on 
the former variance, nor does it limit the scope to chimneys. OSHA 
believes that experience with the alternative conditions as specified 
in previous variances demonstrates that these conditions are safe. 
Therefore, employers can apply the conditions specified in the variance 
safely to structures that have a configuration similar to that of 
chimneys (i.e., ``chimney-related structures''), including silos, 
towers, and other circular structures, because the hazards associated 
with these structures (e.g., falls, impacts, falling objects) are the 
same as the hazards associated with chimneys. It is not the name of the 
structure, nor its diameter and structural configuration (i.e., 
straight-barreled or tapered), that determines whether it is within the 
scope of the variance; rather, it is the use of jump-form and slip-form 
construction techniques and procedures and the use of temporary 
personnel hoist systems.
    Further, Condition 1(a) clarifies that the permanent variance 
applies to ``construction,'' which includes construction, renovation, 
repair, maintenance, inspection, and demolition of chimney-related 
structures. The variance does not apply to work that falls under OSHA's 
general industry standards at 29 CFR part 1910. The variance applies 
only to work that falls under OSHA's construction standards at 29 CFR 
part 1926. Various letters of interpretation and directives establish 
the factors that determine whether maintenance work falls under general 
industry or construction standards. Generally, work that replaces a 
structure or component with an identical structure or component is 
under the general industry standards, while construction standards 
cover work that improves a structure or component. Additionally, scale 
and complexity of the work are factors. Work involving repair, removal, 
or replacement of large structures (e.g., when replacing a steel beam 
in a building), or work involving complex steps, tools, or equipment 
(e.g., when replacing a section of limestone cladding on a building), 
is construction work. See OSHA's November 18, 2003, letter of 
interpretation to Raymond V. Knobbs (available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24789 
for more information about how to determine if general industry or 
construction standards cover specific work. Some simple maintenance 
work on chimney-related structures may fall under general industry 
standards and, thus, be outside the scope of this variance.
    Subparagraphs (1)(a)(i) and (1)(a)(ii) of Condition 1 expand on 
former Conditions 1(b)(i) and 1(b)(ii) by clarifying what material 
employers can hoist. These subparagraphs make clear that the 
``temporary hoist systems'' may not transport construction materials 
concurrently with personnel. Condition 2(c) under ``Application'' 
further clarifies this hoisting requirement.
    The permanent variance modifies former Condition 1(c), which 
addressed personnel platforms and boatswain's chairs, by introducing 
new Condition 2(g). The variance application did not include 
requirements for personnel platforms and boatswain's chairs because 
employers have alternate equipment (reflecting advances in technology) 
available to accomplish tasks that previously required personnel 
platforms or boatswain's chairs raised and lowered by a hoist system. 
However, Condition 2(g) provides the option of replacing a personnel 
cage with a personnel platform or a boatswain's chair when the employer 
can demonstrate that available space makes it infeasible to use a 
personnel cage for transporting employees. OSHA would still enforce the 
provisions in Sec. Sec.  1926.452(o) and .1431(s), and other applicable 
standards, when employers use personnel platforms and boatswain's 
chairs on chimneys that have space available to accommodate the use of 
a personnel cage.
    Condition 2(d) leaves intact the remainder of former Condition 
1(c). Except for the requirements specified for hoist towers by 29 CFR 
1926.552(c)(1) through (c)(4), (c)(8), (c)(13), (c)(14)(i), and 
(c)(16), the current and former conditions require employers to comply 
fully with the applicable provisions of 29 CFR parts 1910 and 1926.
    Additionally, OSHA modified the Scope section further in response 
to comments provided by the National Stack and Chimney Safety and 
Health Advisory Committee (NSCSHAC). (See Section IV of this notice 
(``Comments on Proposed Variance Application'') for a discussion of the 
modifications included in the variance.)
2. Condition 2: Application
    Condition 2 addresses the application of the permanent variance, 
and specifies a number of best practices and other requirements 
employers must meet for the variance to apply. For example, Condition 
2(a) states a general applicability requirement:

    The employer must use a hoist system equipped with a dedicated 
personnel-transport device (i.e., a personnel cage) as specified by 
this variance to raise or lower its workers and/or other 
construction-related tools, equipment, and supplies between the 
bottom landing of a chimney-related structure and an elevated work 
location while performing construction inside and outside the 
structure.

    Condition 2(b) ensures the proper design and operation of the hoist 
system, while Condition 2(c) regulates the transportation of materials 
and proper use of material-transport devices so as to ensure employee 
safety.
    As noted above in the discussion of Condition 1, Condition 2(d) 
leaves intact the remainder of former

[[Page 60906]]

Condition 1(c), which states that the variance conditions cover only 
specific requirements for hoist towers, and that employers must comply 
with all other applicable requirements of 29 CFR parts 1910 and 1926. 
If an employer is not complying with a condition specified by the 
variance, the Agency will implement the citation policy described in 
OSHA's Field Operations Manual (Directive Number: CPL 02-00-150), 
Chapter 3, Inspection Procedures (Section I: Variances). The citation 
policy states:

    1. No Citation Issued. An employer granted a variance will not 
be subject to citation if the observed condition is in compliance 
with an existing variance issued to that employer.
    2. Citations. In the event that an employer is not in compliance 
with the requirement(s) of the issued variance, a violation of the 
applicable standard shall be cited with a reference in the citation 
to the variance provision that has not been met.

    Regarding the second provision of this policy (i.e., 
``Citations''), if OSHA finds that an employer is not complying with a 
variance condition, and the variance condition is not based directly on 
one of the hoist-tower standards from which OSHA granted the variance 
(e.g., the condition is based on a consensus standard or best-work 
practice not specified by an OSHA standard), OSHA will cite the non-
compliance as a violation only of the variance provision. Under no 
circumstances will OSHA cite non-compliance with a variance condition 
as a violation of both an applicable standard and the variance 
condition.
    Condition 2(e), not found in the former variance, allows the 
employer flexibility in the event compliance with a variance condition 
is infeasible.\12\ In such a case, the employer may use an alternative 
means of compliance that provides equivalent or improved protection to 
workers. The employer must demonstrate that compliance with the 
variance conditions is infeasible and that the alternative means of 
compliance is as equivalent to the protection afforded by the variance 
condition.
---------------------------------------------------------------------------

    \12\ See OSHA's Field Operations Manuel (FOM) Chapter VIII.E, 
available at http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-150.pdf.
---------------------------------------------------------------------------

    Condition 2(f), the final provision under ``Application,'' ensures 
that workers can understand the required communications. This condition 
requires that employers communicate with workers in a language the 
workers understand; communications includes any training and signs 
required by the variance. OSHA considers this condition, not found in 
the former variance, important to employee safety and health in that it 
is critical that employees understand the hazards associated with 
personnel hoisting operations, and the means the employer is using to 
protect them from these hazards.
    The permanent variance modified Condition 2 of the former variance, 
entitled ``2. Replacing a Personnel Cage with a Personnel Platform or a 
Boatswain's Chair.'' Accordingly, Condition 2(g) permits employers to 
use personnel platforms and boatswain's chairs when using jump-form and 
slip-form construction techniques and procedures (regardless of the 
structure's configuration) to construct chimneys and chimney-related 
structures, but only under specific, limited conditions. Employers may 
use personnel platforms and boatswain's chairs only when they 
demonstrate that it is infeasible to use personnel cages because of 
space limitations. Under these circumstances, employers must use 
personnel platforms unless space limitations necessitate use of 
boatswain's chairs. When replacing a personnel cage with a personnel 
platform or boatswain's chair, employers must follow the requirements 
of 29 CFR 1926.1431(b) through .1431(s), and 1926.452 (o)(3), 
respectively.
    Additionally, OSHA modified the Application section further in 
response to comments provided by NSCSHAC. (See Section IV of this 
notice (``Comments on Proposed Variance Application'') for a discussion 
of the modifications included in the variance.)
3. Condition 3: Definitions
    Condition 3 defines 29 key terms, usually technical terms, used in 
the permanent variance to standardize and clarify the meaning of these 
terms. This condition was not part of the former variance, but OSHA 
believes that defining these terms will enhance employer and employee 
understanding of, and subsequent compliance with, the variance 
conditions, thereby ensuring that employees receive the requisite level 
of protection afforded to them by the variance.
4. Condition 4: Qualified Person and Competent Person
    Condition 4 addresses the requirements of a qualified person and a 
competent person. In the former variance, OSHA inadvertently combined 
these terms into ``qualified competent person.'' The terms ``qualified 
person'' and ``competent person'' have separate definitions in OSHA's 
construction standards, and this condition uses these terms consistent 
with their meaning in the construction standards. Although an employee 
or contract worker can be both a qualified person and competent person, 
they usually are not. Indeed, Sec.  1926.32(f) defines ``competent 
person'' as ``one who is capable of identifying existing and 
predictable hazards in the surroundings or working conditions which are 
unsanitary, hazardous, or dangerous to employees, and who has 
authorization to take prompt corrective measures to eliminate them.'' 
In contrast, Sec.  1926.32(m) defines ``qualified person'' as ``one 
who, by possession of a recognized degree, certificate, or professional 
standing, or who by extensive knowledge, training, and experience, has 
successfully demonstrated his ability to solve or resolve problems 
relating to the subject matter, the work, or the project.'' The 
provisions of Condition 4 distinguish the two terms. Unlike former 
Condition 3(a)(i), this condition allows for the use of more than one 
competent and/or qualified person to perform the various tasks. This 
condition would enable employers to distribute the workload evenly 
among available personnel and not rely on having available a single 
individual with expertise in the various tasks.
    Condition 4(a)(ii) emphasizes that, operationally, a competent 
person (not a ``qualified competent person'' as in former Condition 
3(a)(ii)) must be present. Condition 4(b) requires that a qualified 
person (not a ``qualified competent person'' as in former Condition 
3(b)) must design and maintain the cathead. Finally, Condition 4(c) 
specifies that the employer must train the competent and qualified 
persons in the applicable variance provisions. This condition, which is 
not in the former variance, will ensure that competent persons and 
qualified persons assigned responsibilities under the variance have the 
knowledge necessary to perform their tasks effectively under the 
conditions specified by the variance.
5. Condition 5: Hoist Machine
    Condition 5 (formerly Condition 4) addresses the requirements of a 
hoist machine. Condition 5(a)(i) removes the distinction of ``a 
portable personnel hoist'' and, instead, designates the hoist machine 
as a hoist system. Moreover, Condition 5(a)(ii) adds language to ensure 
the proper use and maintenance of the hoist machine.
    Conditions 5(b) through 5(e), which address raising or lowering a 
transport, power source, constant-pressure control switch, and line-
speed indicator remain as before, with the exception of the former 
Condition 4(d)(ii) (Constant-pressure control switch), which is

[[Page 60907]]

substantively addressed in Condition 5(s), Overhead Protection. Note: 
Employers should consider adopting as a best practice ANSI's A10.22-
2007 (at 4.2(2)), which specifies that employers are not to use chains, 
as well as belts, as drive components between the power source and the 
winding drum.
    Condition 5(f), Overspeed, is a new condition adapted from ANSI 
A10.22. It will alert the hoist operator in the event the personnel 
cage travels at excess speed, thereby preventing speed-related 
accidents and associated worker injury. The text of Condition 5(g), 
Braking systems, remains the same as the text of former Condition 4(f). 
Note that ANSI A10.22-2007 (at Section 4.6) provides additional 
guidelines for braking systems that employers should consider 
following.
    Condition 5(h), Slack-rope protection (formerly Condition 4(g), 
Slack-rope switch), differs somewhat from the former condition by 
requiring hoist design features that will prevent a slack-rope 
condition. The condition will limit stress on the rope caused by snaps, 
thereby preventing premature rope failure.
    Condition 5(i), Frame, formerly Condition 4(h), varies slightly 
from the former condition by ensuring that the frame of the hoist 
machine meets design specifications, thereby improving hoist machine 
safety. Condition 5(j), Stability, formerly Condition 4(i), also is a 
slight redraft of the former condition. The condition requires 
employers to secure hoist machines in accordance with design 
specifications, which will ensure the stability of the hoist machine 
during operation.
    Condition 5(k), Location, formerly Condition 4(j), is a slight 
variation of the former condition in that it adds the term ``winding'' 
for clarification. The footnote in the condition defining the term 
``fleet angle'' duplicates a footnote in the former condition.
    Condition 5(l), Drum and flange diameter, formerly Condition 4(k), 
remains the same as the former condition, while Condition 5(m), 
Spooling of the rope, formerly Condition 4(l), differs somewhat from 
the former condition by allowing employers to store the rope on the 
drum closer than two inches from the flange when the hoist machine is 
not in use. The two-inch gap is necessary when the hoist is in 
operation to prevent the rope from leaving the drum, causing hoisting 
accidents. However, employers may store the rope closer than two inches 
from the flange when transporting or storing the drum, which OSHA 
believes does not endanger employees.
    Condition 5(n) is a new condition that requires employers to secure 
the rope firmly to the drum. This condition prevents inadvertent 
unwinding of the rope in the event an operator lowers the hoist load 
beyond its lowest point of travel by requiring employers to secure the 
hoist end of the rope mechanically to the hoist drum.
    Condition 5(o), Electrical system, formerly Condition 4(m), retains 
the text of the former condition, which reduces the risk of electric 
shock. Condition 5(p), Grounding, is a new condition adopted from ANSI 
A10.22. The condition also will reduce the risk of electric shock.
    Condition 5(q), Limit switches, formerly Condition 4(n), revised 
the former condition by differentiating personnel hoisting from 
material hoisting.
    A new condition, Condition 5(r), ensures proper guarding of the 
hoist machine. A note added to the condition clarifies that when 
employers limit access to the hoist drum to only authorized personnel 
(usually the hoist operator), OSHA will consider the drum as guarded 
under this condition. This new condition will prevent inadvertent 
operation of the hoist machine, which could endanger employees involved 
in the hoisting operations.
    As indicated above under the discussion of Conditions 5(b) through 
5(e), Condition 5(s), Overhead protection, is an adaptation of former 
Condition 4(d)(ii). The condition will protect the hoist operator and 
the hoist machine from falling or moving objects.
6. Condition 6: Methods of Operation
    Condition 6 (formerly Condition 5), addresses methods of operation. 
This condition expands and clarifies the training requirements for both 
the operators of the hoist machine and the employees who ride in the 
cage. The condition adopts several provisions of ANSI A10.22-2007.
    Condition 6(a)(i) requires employers to ensure that hoist operators 
and their supervisors receive effective training in the safe operation 
of hoist machines, and document the training. Conditions 6(a)(ii) and 
6(a)(iii) require that only trained and authorized workers operate the 
hoist; address the timing of the documented training for each worker 
who uses the cage for transportation; and specify the frequency of all 
required training. Conditions 6(a)(i), (ii), and (iii), based on former 
Conditions 5(a)(i) and 5(a)(ii), will ensure the safe use of the hoist 
machine and cage.
    Condition 6(b) is a new condition that requires employers to use a 
job-hazard analyses (JHA) to provide enhanced jobsite safety by 
identifying safety hazards at the worksite not covered explicitly by 
the current conditions. OSHA publication 3071, entitled ``Job Hazard 
Analysis'' defines JHA as follows:

    A job hazard analysis is a technique that focuses on job tasks 
as a way to identify hazards before they occur. It focuses on the 
relationship between the worker, the task, the tools, and the work 
environment. Ideally, after uncontrolled hazards are identified, 
steps will be taken to eliminate or reduce them to an acceptable 
risk-level.

    Condition 6(b) requires that employers conduct one or more JHAs for 
the operation of the temporary personnel hoist system. The condition 
also requires employers to review these analyses with the workers 
exposed to any identified hazards.
    Condition 6(c), Speed limitations, formerly Condition 5(b), differs 
from the former condition in that it revises hoist speed requirements. 
To prevent overtravel accidents, Condition 6(c)(i) adds a requirement 
to slow the hoist speed at extremes of hoist travel, as well as an 
overspeed allowance from ANSI A10.22-2007. A note in this condition 
contains the requirement from former Condition 5(b)(iii) that specifies 
limits on hoist speed when hoisting material only, again to prevent 
accidents related to overtravel. Condition 6(c)(ii) retains the speed 
limitation in former Condition 5(b)(ii) of 100 feet per minute for 
personnel platforms and boatswain's chairs when used to transport 
workers. The slower speed for these devices (compared to personnel 
cages) is necessary because of the impact and shearing hazards present 
when workers are using these devices (see discussion below for 
Condition 16).
    Condition 6(d), Communication, redrafted former Condition 5(c) to 
clarify the requirement for communication equipment by replacing the 
term ``voice-mediated intercommunication system'' with the term 
``electronic voice-communication system (such as two-way radio)'' to 
allow employers flexibility in selecting this type of equipment. In 
addition, as with the former condition, the current condition requires 
that employers maintain at all times communication between the hoist 
operator and the workers located in a moving personnel cage. OSHA notes 
that a ``failure of communication'' requiring employers to stop 
hoisting as specified by Condition 6(d)(ii) includes lack of clarity in 
communication, as well as equipment failure. Accordingly, the condition 
requires clear and unambiguous communication at all times, thereby 
ensuring continuous employee

[[Page 60908]]

protection in the event of procedural or equipment failures.
7. Condition 7: Hoist Rope
    Condition 7 (formerly 6), addresses the hoist rope. Although 
Conditions 7(a) and (c) remain the same as former Conditions 6(a) and 
(c), revisions to the remaining conditions focus on making the 
requirements consistent with other OSHA standards (e.g., 
1926.552(c)(14)(iii)), and adopting updated safety requirements 
specified by ANSI A10.22-2007. For example, Condition 7(b), Safety 
factor, increases the safety factor of the rope from 8 to 8.9 times the 
total suspended load as opposed to a ``safe workload'' as specified by 
former Condition 6(b). To clarify the load calculation, the current 
conditions added the parenthetical phrase, ``(including the weight of 
the suspended rope).'' New condition 7(d), adopted from the ANSI 
standard, addresses rope lay; this new condition will prevent rope 
rotation and kinking, thereby reducing stress on the rope and ensuring 
smooth hoisting operations. Except for minor editorial revisions, the 
text of Condition 7(e), Inspection, removal, and replacement of hoist 
ropes, remains the same as the text of former Condition 6(d); this 
provision will prevent the employer from using hoist ropes that could 
fail during hoisting operations.
    Revisions made to former Condition 6(e) by Condition 7(f), 
Attachments, provide alternative requirements similar to the 
requirements in ANSI A10.22-2007. OSHA believes these alternatives will 
provide safer means of positively connecting and securing the hoist 
rope to the personnel cage than provided by the former condition, thus 
preventing accidents involving connection failure.
    The text of provisions (i) through (iv) of Condition 7(g), Wire-
rope fastenings, remains much the same as former Condition 6(f), with 
only minor editorial revisions. However, Condition 7(g) includes three 
new provisions, 7(g)(v) through 7(g)(vii), that specify how and when to 
tighten and retighten clip fastenings. These new provisions should 
compensate for decreases in rope diameter caused by repeated 
application of the load and, thus, serve to maintain proper torque on 
the rope and improve rope integrity. Additionally, the permanent 
variance added two new requirements: Condition 7(h), Rotation-resistant 
ropes and swivels, and Condition 7(i), Rope protection. These added 
conditions should increase worker safety by preventing rope damage and 
improving rope integrity. The conditions also are consistent with 
provisions in ANSI A10.22-2007, which requires barricading the hoisting 
rope between the hoisting machine and the footblock, thereby preventing 
the rope from making abrasive contact with the ground and providing 
falling-object protection when appropriate.
    Since employers are free to exceed the requirements of the 
conditions (with respect to worker protection), employers may use 
extra-extra-improved plow steel as the rope grade. Note also that ANSI 
A10.22-2007 (at Section 6) provides additional guidelines for hoist 
rope that employers should consider following.
8. Condition 8: Footblock
    Condition 8 (formerly Condition 7) addresses the footblock on hoist 
machines. Condition 8(a)(i) revised the safety factor found in the 
former condition from 4 to 5 times the applied workload ;\13\ to be 
consistent with the safety factor of the cathead (see Condition 9). 
Provisions (a)(iii) and (iv) of Condition 8 vary from provisions of 
former Condition 7(a)(iii) and 7(a)(iv) to be more performance oriented 
and more consistent with alternatives presented in ANSI A10.22-2007. 
These revisions will ensure that the moving wire rope effectively and 
safely accommodates turning from the horizontal to vertical axes as 
required by the direction of rope travel. While Conditions 8(b) and 
8(c) remain the same as former Conditions 7(b) and 7(c), the variance 
has a new condition, 8(d), that allows a properly mounted sheave as a 
footblock substitute, consistent with the ANSI standard and Condition 
9, Cathead and Sheave. Allowing a sheave substitute also will serve to 
ensure that the moving wire rope effectively and safely accommodates 
turning from horizontal to vertical axes as required by the direction 
of rope travel.
---------------------------------------------------------------------------

    \13\ The applied workload is equivalent to the total suspended 
load.
---------------------------------------------------------------------------

9. Condition 9: Cathead and Sheaves
    Condition 9 (formerly Condition 8) addresses catheads and sheaves. 
Condition 9(a) revises former Condition 8(a) to allow use of aluminum 
for the cathead because of its light weight, provided the employer 
complies with the cathead design drawings. Condition 9(b) remains the 
same as former Condition 8(b). OSHA believes that following the design 
drawings, along with the requirements specified by Condition 9(e) (see 
below), will assure the safety of the cathead. Provisions (c) and (d) 
of Condition 10 remain as in former Condition 9. However, Condition 9 
also contains three new paragraphs, (e) through (g), based on the ANSI 
A10.22-2007 standard. Condition 9(e), Design basis, requires that the 
design of steel catheads conform to the American Institute of Steel 
Construction (AISC), and that aluminum catheads follow the Aluminum 
Association's design manual. Both types of catheads must have a safety 
factor of 5 for the maximum intended working load (equivalent to the 
total intended suspended load) for personnel and material hoisting. 
This provision will ensure the structural integrity and safety of the 
cathead up to workloads 5 times the maximum intended working load of 
the cathead.
    Provision (f)(i) of Condition 9, Clearance, requires adequate 
clearance between the bottom of cathead and the cable attachment at the 
top of the hoist cage to eliminate the risk of contact between the 
cathead and the cage if operation of the upper limit switch stops the 
cage. The second provision of this paragraph (subparagraph (f)(ii)) 
specifies that the cage must travel without obstruction along the full 
length of the guide ropes. Both of these provisions will improve safety 
by reducing stress on the guide ropes that would occur should the cage 
come into contact with the cathead or other obstruction. Finally, 
Condition 9(g), Sheave substitute, allows a properly mounted 
construction block as a substitute for a sheave, which serves to ensure 
that the moving wire rope effectively and safely accommodates turning 
from the horizontal to vertical axes as required by the direction of 
rope travel; this condition also refers to Condition 8(d), which 
addresses sheave substitutes.
10. Condition 10: Guide Ropes
    Condition 10 (formerly Condition 9) addresses guide ropes. This 
condition contains several revisions made for clarification and 
precision. For example, Condition 10(a) added the term ``securely'' 
before the phrase ``two guide ropes to the cathead'' and the phrase 
``or to overhead supports designed for the purpose of accepting the 
guide ropes'' at the end of this provision. The term ``securely'' 
ensures that guide ropes remain affixed to the cathead or overhead 
support during hoisting operations, while the added phrase addressing 
overhead supports acknowledges that hoist machines often use overhead 
supports other than catheads to secure guide ropes. Also, Condition 
10(a)(ii) references 29 CFR 1926.552(c)(17)(iv) to ensure that steel 
wire rope is free of damage or defects at all times. In addition, 
Condition 10(b) added the phrase ``During the hoisting of personnel'' 
to clarify when the

[[Page 60909]]

requirement applies to hoisting operations, while Condition 10(c) 
replaced the verb ``to rig'' with the verb ``to install'' to clarify 
the meaning of the term. Note that ANSI A10.22-2007 (at Section 9.2) 
provides additional guidelines for alignment tension that employers 
should consider following.
11. Condition 11: Personnel Cage
    Condition 11 (formerly Condition 10) addresses personnel cages. 
There are several revisions to the former condition. Condition 11(a) 
removes the requirement that the cage be made of steel, relying on the 
performance-based language ``capable of supporting a load that is eight 
(8) times its rated load capacity.'' This revision will provide 
employers with flexibility with regard to the materials used to 
construct personnel cages, while ensuring worker safety. The provision 
also raises the safety factor from 4 to 8 to improve worker protection; 
this revision is consistent with ANSI A10.22-2007.
    Former Conditions 10(a)(v) and 12(a) were inconsistent regarding 
the thickness of the roof of the personnel cage: Former Condition 
10(a)(v) required that the roof be constructed of one-eighth (1/8) inch 
aluminum or equivalent material, while former Condition 12(a) specified 
that the roof be constructed of three-sixteenth (3/16) inch steel plate 
or equivalent material. Condition 11(a)(v) requires that the roof of 
the personnel cage be constructed of three-sixteenths (3/16) inch steel 
plate or equivalent material, the most protective of the required 
thicknesses. This provision also requires that the roof slope to the 
outside of the personnel cage to ensure that falling objects do not 
remain on the cage and add to the weight of the load.
    The revision to Condition 11(a)(vi) clarifies that employers cannot 
use rails or hard protrusions when their presence creates an impact 
hazard. This clarification should increase worker safety by reducing 
impact hazards should workers lose their balance because of cage 
movement.
    Condition 11(b) revised the former term ``overhead weight'' to the 
commonly used term ``overhaul weight'' for clarification. To improve 
worker safety, Condition 11(e) added a design requirement that the 
rated load capacity of the cage be at least 250 pounds for each 
occupant, or the actual weight if an occupant exceeds 250 pounds. With 
this added design requirement increasing the safety of the personnel 
cages, the second provision of this condition revised the former phrase 
``Hoist no more than four (4) occupants at any one time'' to ``Hoist at 
any one time no more than the number of occupants for which the cage is 
designed'' to allow flexibility in the number of employees who can 
occupy a cage simultaneously during use.
    Condition 11(f) clarifies the worker-notification requirement of 
former Condition 10(f). Accordingly, the condition added a new 
requirement in provision 11(f)(ii) to notify workers of the number of 
occupants the cage can accommodate, while provision 11(f)(iii) revised 
the former phrase ``The reduced rated load for the specific job'' to 
``Any reduction in rated load capacity (in pounds) if applicable (due 
to change in conditions of the specific job).'' These revisions will 
serve as an additional check to prevent overloading the personnel cage.
    Condition 11(g), Static drop tests, updated the reference to the 
ANSI A10.22 standard to the latest, 2007, edition. Also, to be 
consistent with this new edition, Condition 11(g)(ii) limited the 
former test criteria (i.e., the initial test criterion included in 
former Condition 10(g)(ii) of 125% of the maximum rated load of the 
personnel cage, and subsequent drop tests at no less than 100% of its 
maximum rated load) to the updated test criteria; these updated 
criteria require employers to use the rated load of the personnel cage 
during testing to avoid causing unnecessary damage to the cage.
    Condition 11(h) is a new provision that prevents the cage from 
catching on the platform at the top landing or on intermediate 
platforms. OSHA believes this condition will decrease stress on the 
hoist rope and prevent impact injuries among employees who use the 
cage.
12. Condition 12: Safety Clamps
    Condition 12 (formerly Condition 11) addresses safety clamps, with 
only a few revisions to the former condition. For clarity, Condition 
12(a)(ii) revised the term ``when in use'' to ``when the cage is in 
motion.'' Condition 12(c) added the phrase ``The employer must ensure'' 
to former Condition 11(c) to place the burden of proving compliance on 
the employer. In addition, Condition 12(c)(i) updates the ANSI 
reference in former Condition 11(c)(i) to ANSI standard A10.22-2007.
13. Condition 13: Overhead Protection
    The requirements of paragraphs (a) and (b) of former Condition 12, 
Overhead Protection, specified the requirements for constructing sloped 
roofs for personnel cages. Condition 11, Personnel Cage, now covers 
these requirements under subparagraph 11(a)(v). Therefore, Condition 13 
contains a new requirement, in performance-based language, providing 
overhead protection for workers accessing the bottom landing. OSHA 
believes this provision will increase the safety of employees working 
around the bottom landing during hoist operations.
14. Condition 14: Emergency Escape Devices
    Condition 14 (formerly Condition 13) continues to address emergency 
escape devices with minor revisions. Condition 14(a) in this variance 
adds the phrase ``For workers using a personnel cage'' as a preface to 
the provision to clarify the requirement. In addition, the training 
provision, Condition 14(c), references Condition 6(a)(iii), which 
addresses the timing of training (e.g., before initial use, and 
periodically thereafter).
15. Condition 15: Personnel Platforms and Boatswain's Chairs
    Condition 15 replaces and updates former Condition 14 (Personnel 
Platforms) by addressing the hazards and required safeguarding methods 
associated with the use of personnel platforms and boatswain's chairs. 
Accordingly, when meeting the criteria specified in Condition 2(g), 
employers may use personnel platforms and boatswain's chairs only when 
they demonstrate that it is infeasible to use personnel cages because 
of space limitations in a chimney or a chimney-related structure. In 
these situations, employers must use personnel platforms unless space 
limitations require the use of boatswain's chairs. When replacing a 
personnel cage with a personnel platform or boatswain's chair, 
employers must follow the applicable requirements of 29 CFR 
1926.1431(b) through .1431(s) and 1926.452(o)(3), respectively.
16. Condition 16: Protecting Workers From Fall and Shearing Hazards
    Condition 2(g) of this variance provides the option of replacing a 
personnel cage with a personnel platform or a boatswain's chair when 
using jump-form or slip-form construction techniques and procedures to 
construct chimneys and chimney-related structures, but only when the 
employer demonstrates that it is infeasible because of space 
limitations to use a personnel cage to transport workers to and from 
elevated worksites. Condition 16 of this variance also continues to 
address shearing hazards (as did former Condition 15, Protecting 
Workers from Fall and Shearing Hazards) because these hazards are 
present when workers use personnel platforms and boatswain's chairs 
under

[[Page 60910]]

the limitations specified by Condition 2(g). This condition also 
redrafted the fall-hazard provisions of former Condition 15 to address 
fall hazards associated with both the hoist areas and the cage, with 
references to relevant requirements of 29 CFR part 1926. OSHA believes 
these revisions cover fall hazards more thoroughly than the former 
condition, thereby increasing worker protection from these hazards.
17. Condition 17: Exclusion Zone
    Condition 17 (formerly Condition 16), which covers exclusion zones, 
made substantial revisions to the former condition. Accordingly, the 
condition specifies requirements for establishing an exclusion zone; 
these requirements were not part of the former condition. OSHA believes 
that these requirements will improve worker safety by ensuring that 
unauthorized persons do not enter the zone, thereby reducing their risk 
of injury from being struck by the hoisting equipment, falling objects, 
and the personnel cage.
    Condition 17(d) is a new provision that clarifies when workers can 
enter the exclusion zone during operations involving a material-
transport device. This provision will reduce worker exposure to the 
hazards associated with these operations, including impact and crushing 
hazards from the hoisting equipment and material-transport device.
18. Condition 18: Inspections, Tests, and Accident Prevention
    Paragraphs (a) and (b) of Condition 18 expand the inspection, test, 
and accident-prevention requirements of former Condition 17 by 
specifying that employers: (1) Conduct frequent and regular (at least 
weekly) inspections of the hoist system and the area around the hoist 
system; (2) inspect the hoist system prior to reuse following periods 
of idleness lasting more than one week; and (3) remove hoisting 
equipment from service when a competent person determines that the 
equipment is unsafe. These revisions will ensure that hoist systems are 
safe for worker use. Paragraph (c) adds a requirement that employers 
document tests, inspections, and corrective actions. This requirement 
will provide employers with information needed to schedule tests and 
inspections, and to determine the actions taken to correct defects in 
hoisting equipment prior to returning it to service.
19. Condition 19: Welding
    Condition 19 (formerly Condition 18) revised paragraph (a) of the 
former condition by defining the term ``qualified'' to mean a welder 
who meets the requirements of the American Welding Society, 
specifically, the qualification requirements of American Welding 
Society (AWS) D1.1 Structural Welding Code--Steel, or AWS D1.2 
Structural Welding Code--Aluminum, as applicable. Specifying the 
qualifications for welders will improve worker safety by providing 
assurance that personnel who weld components of hoist systems possess 
the skills necessary to perform this work, and will do so competently 
and in a manner that maintains the operational integrity and safety of 
the systems.
20. Condition 20: OSHA Notification
    Condition 20 (Condition 19 in the former variance) addresses the 
duty of employers to notify OSHA of events and conditions associated 
with their hoisting operations. Paragraphs (a) and (b) of the condition 
made substantial revisions to paragraph (a) of the former condition, 
including: (1) Specifying the legal test (due diligence) that OSHA must 
apply to these notification requirements; (2) identifying the Office of 
Technical Programs and Coordination Activities (OTPCA) at national OSHA 
headquarters (not the nearest OSHA area office) or the appropriate 
State-Plan office as the offices to receive notification and the 
required information (i.e., the location of the operation and the date 
the operation will begin); (3) providing contact information (i.e., 
telephone and facsimile numbers, and email address) for OTPCA; and (4) 
requiring employers to notify OTPCA or the appropriate State-Plan 
office at least 15 days prior to beginning any emergency operation or 
short-notice project that uses the conditions specified by the variance 
of the location and date of the operation or project or, if such an 
operation will occur in less than 15 days, then as soon as possible 
after the employer knows when the operation will begin.
    Former paragraph (b) addressed notification requirements when the 
employer ceases to do business or transfers the activities covered by 
the variance to a successor company. Paragraphs (c) and (d) of 
Condition 20 in this variance expand on the former requirements by: (1) 
Reiterating the legal test (due diligence) that OSHA will apply to 
these notification requirements; (2) specifying that employers notify 
OTPCA of any changes in the location and address of the main office for 
managing the activities covered by the variance; and (3) stipulating 
that OSHA must approve the transfer of the variance to a successor 
company.
    OSHA believes that the revisions made to former Condition 19 by 
Condition 20 in this variance will expedite receipt of information by 
OSHA and State-Plan states regarding the initiation and location of 
hoisting operations covered by the variance, and will clarify that the 
notification requirements apply as well to emergency operations and 
short-term projects. Accordingly, these revisions will improve worker 
safety by ensuring that OSHA and State-Plan states have complete and 
accurate information about the chimney-construction activities covered 
by the variance so that these agencies can carefully monitor employer 
compliance with the conditions specified by the variance. While 
Condition 20 now clearly notifies employers of the legal test they must 
meet in complying with the requirements of this condition, OSHA notes 
that it will not issue a citation if an employer's violation of 
Condition 20 does not immediately affect worker safety or health; in 
these circumstances, OSHA may, however, issue a notice of de minimis 
violation.
    Requiring employers to notify OTPCA of any changes in the location 
and address of their main offices will allow OSHA to communicate 
effectively with employers regarding the status of the variance. 
Stipulating that an employer must have OSHA's approval to transfer a 
variance to a successor company provides assurance that the successor 
company has the resources, and agrees, to comply with the conditions of 
the variance. OSHA believes this requirement is necessary to ensure the 
safety of workers involved in performing the operations covered by the 
variance.

IV. Comments on the Proposed Variance Application

    Two public commenters submitted comments on the proposed variance 
application. Additionally, OSHA received comments on the proposed 
variance application from the state of Michigan. See Section II 
(``Multi-State Variance'') of this notice for a discussion of 
Michigan's comment.
    The first public commenter was Mr. Barry A. Cole of Cole-Preferred 
Safety Consulting, Inc., who supported granting the permanent variance 
(Document ID No. OSHA-2012-0015-0003). Mr. Cole also provided comments 
unrelated to the published variance applications; these comments 
addressed OSHA's variance and enforcement process, which is beyond the 
scope of the variance application.
    The National Stack and Chimney Safety and Health Advisory Committee

[[Page 60911]]

(NSCSHAC) submitted the second public comment (Document ID No. OSHA-
2012-0015-0021). This comment: (1) Compared the proposed variance 
conditions to the conditions in the prior chimney variances; and (2) 
addressed the scope of the variance application. NSCSHAC also requested 
a hearing under 29 CFR 1905.15 if OSHA either rejected its comments or 
made substantive revisions to them; OSHA adopted all of NSCSHAC's 
comments without revision, so a hearing is unnecessary.
    The remainder of this section describes the specific comments 
submitted by NSCSHAC, and OSHA's response to them.
    Comment 1: NSCSHAC stated that the second paragraph in the 
Background section of the variance application contained an incorrect 
statement regarding the alternative conditions described in previous 
chimney variances, notably that the conditions applied only to tapered 
chimneys constructed using jump-form construction techniques and 
procedures. NSCSHAC requested that OSHA revise or remove the subject 
sentences from the Background section, and also revise or remove all 
other comparable sentences in the variance application.
    OSHA's response: The Agency made the requested revisions.
    Comment 2: NSCSHAC requested that OSHA modify the scope condition 
(proposed Condition 1) of the variance application such that it covers 
all chimney-related construction, regardless of the construction method 
and configuration, when such construction involves the use of temporary 
personnel hoisting systems. NSCSHAC provided the following rationale 
for its comment:

    (1) The language used in the Notice is not the actual language 
included in the Permanent Variance Applications submitted in 
November 2012 (see Variance Application Attachment A; Exhibit No. 
OSHA-2012-0015-0018).
    (2) [NSCSHAC] has demonstrated through it meetings with OSHA 
that the chimney hoist variance is applicable for the two different 
construction methods of jump-form formwork (described as ``formwork 
techniques'' in the Notice) and slip-form formwork construction, 
regardless of the structural configuration, i.e. tapered or straight 
barreled.
    (3) Chimneys constructed by the slip-form method can also be of 
tapered configurations and need to be included in the variance. 
Slip-form formwork for tapered chimneys has the same conditions for 
use of the chimney hoist system as for slip-form formwork for 
straight barreled chimneys.
    (4) Chimneys constructed by the jump-form method can be tapered 
and straight barrel chimneys, and of small and large diameters. The 
reasons for obtaining a variance for large barreled chimneys are 
similar to the reasons for a variance for small barreled chimneys, 
and include the following:
    I. Per the original variance dated 4/3/73, a hoist (tower) would 
interfere with the design and construction of the proper 
scaffolding. The inside of the chimney for the jump-form formwork 
construction includes support sling cables for the work platform and 
formwork support structure at multiple locations around the 
perimeter of the top sections of concrete, for both large and small 
diameter chimneys. These cables are positioned 360 degrees around 
the circumference at this location, making it almost impossible to 
get any access on the inside of the chimney adjacent to the wall. 
There are also trailing scaffolds that extend down as much as 17 ft. 
on the outside for finishing work and adjusting the equipment. All 
access/egress for the jump-form formwork for small and large barrel, 
and tapered chimneys has always been obtained at a distance away 
from the walls using the chimney hoist system integrated into these 
types of formworks.
    II. The majority of work during the construction of the jump-
form formwork for small and large straight-barrel, and tapered 
chimneys is at the perimeter wall location, with hazards of falling 
concrete, tools, and equipment. This is the reason for the 
designated exclusion zones and overhead protection, and for locating 
the personnel cage away from the chimney wall.
    III. Small barreled chimneys may have only one liner flue, and 
large barreled chimneys may have multiple liner flues. Therefore, 
the available room inside a large barreled chimney may be no larger 
than for a small barreled chimney regardless of the construction 
methods due to the multiple flues.
    IV. When performing liner construction, access is also required 
to the inside of the chimney liner, which limits the usefulness of 
attaching a hoist tower to the interior or exterior of the chimney 
walls. In addition, when a hoist system is used inside of a liner 
the ability to erect and brace a hoist tower is infeasible due to 
interference with, and the usually unsuitable support provided by, 
the liner while being constructed.
    V. The unique concrete techniques and procedures involved in 
jump-form formwork, similar to slip-form construction, make it also 
difficult and unsafe to attach a hoist tower to both the interior or 
exterior walls of a chimney during construction. The fresh concrete 
is poured into forms that are 7.5 ft. to 10.0 ft. tall on a daily 
basis. As a result of this progressive construction process, the 
concrete wall immediately below the platform for a distance of 15 
ft. to 30 ft. is insufficiently cured to safely attach a hoist tower 
to the wall.
    VI. The frequent extensions of a hoist tower to keep up with the 
moving work platforms involves many difficulties in erection, 
bracing, and guying as was discussed in the original variance in 4/
3/73. Also discussed were the extra precautions to obtain 
substantial bracing if a hoist tower is constructed, since both the 
chimney and the hoist tower would be exposed to high winds. 
Therefore, personnel would be exposed to greater safety hazards due 
to weather elements, erection procedures, and working underneath the 
work platform and installing a hoist tower to the exterior wall, 
than they would be by using the personnel cage with the hoist 
variance. These difficulties and increased hazards involved in use 
of a hoist tower are applicable to both jump form and slip form 
methods and for both tapered and straight barreled chimneys.

    Therefore, according to NSCSHAC, the scope condition (Condition 1) 
of the variance should include tapered chimneys constructed by slip-
form construction techniques and procedures and large-barreled chimneys 
constructed by jump-form construction techniques and procedures; in 
sum, the variance should apply to all chimneys regardless of 
construction method or structural configuration.
    OSHA's response: The Agency corrected the scope condition in the 
variance (Condition 1) to include both jump-form and slip-form 
construction methods and procedures, regardless of configuration (i.e., 
straight-barreled or tapered).
    Comment 3: NSCSHAC stated that OSHA should delete or revise 
paragraph (b) of the scope condition (proposed Condition 1) in the 
variance application to apply only to structures other than chimneys, 
and provided the following rationale for this comment:

    (1) This paragraph is not in the actual Permanent Variance 
Applications submitted in November, 2012.
    (2) [NSCSHAC] has demonstrated though its meetings with OSHA and 
again with the explanations above, that this variance is applicable 
to small and large straight-barreled chimneys for both jump-form and 
slip form formwork and there should be no further reason to 
demonstrate that it is infeasible to erect a hoist tower inside or 
outside of the structure for these construction methods.
    (3) The condition that ``only after demonstrating that it is 
infeasible to erect a hoist tower either inside or outside the 
structure'' is subjective and the application of it is unclear. Is 
the grantee to obtain approval from OSHA prior to use? How long will 
it take for OSHA to approve the use on a particular project and will 
this occur during the project bidding stage? Can the work be stopped 
by OSHA until the grantee demonstrates it is infeasible? These and 
other questions create undue schedule and cost concerns for the 
project participants.

    OSHA's response: The Agency inadvertently included paragraph (b) in 
proposed Condition 1, and removed the paragraph from the permanent 
variance as requested by NSCSHAC.
    Comment 4: NSCSHAC noted that the last paragraph in the 
Supplementary

[[Page 60912]]

Information Section (and similar paragraphs throughout the variance) 
unnecessarily limited the scope of the variance application. NSCSHAC 
recommended that OSHA revise this language (and similar language 
elsewhere in the variance application) to include both jump-form and 
slip-form construction techniques and procedures, and straight-barreled 
or tapered configurations. NSCSHAC provided the following rationale for 
this comment: ``NSCSHAC has explained above that the variance's scope 
should be broad enough to include jump-form and slip-form formwork 
construction, as well as accommodate different structural 
configurations of large or small-diameter tapered and straight barreled 
chimneys.''
    OSHA's response: The Agency made the requested revisions.
    Comment 5: NSCSHAC pointed out that the first and second 
introductory sentences of paragraph (g) of proposed Condition 2 
(Application) are inconsistent regarding the variance application's 
coverage. The first sentence refers to covering construction of tapered 
chimneys, and small-diameter, straight-barreled chimneys and chimney-
related structures, while the wording of the next (second) sentence 
states that the variance application would cover only the construction 
of tapered chimneys. Accordingly, NSCSHAC requested that OSHA revise 
paragraph (g) to read: ``Replacing the personnel cage with a personnel 
platform or a boatswain's chair.''
    OSHA's response: The Agency inadvertently limited the second 
introductory sentence of paragraph (g) to tapered chimneys. However, 
because the conditions specified by the permanent variance cover both 
jump-form and slip-form construction techniques and procedures 
regardless of the configuration of the chimney or chimney-related 
structure (i.e., tapered or straight-barreled chimneys and chimney-
related structures of any diameter) (see OSHA's response to NSCSHAC 
comment 2 above), the Agency removed both introductory sentences from 
the permanent variance.

    Note: In addition to the revisions made in response to NSCSHAC's 
comments, OSHA made a number of minor stylistic, technical, or 
editorial corrections to the variance conditions to correct previous 
errors or to improve clarity.

V. Decision

    As noted previously in this preamble, from 1973 to the present the 
Agency granted a number of permanent variances from 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. In view of the Agency's history with the variances granted 
for chimney construction, OSHA determined that the alternative 
conditions specified by the application will protect employees 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.
    Under section 6(d) of the Occupational safety and Health Act of 
1970 (29 U.S.C. 655), and based on the record discussed above, the 
Agency finds that when the employers comply with the conditions of the 
following order, the working conditions of the employers' workers will 
be at least as safe and healthful as if the employers complied with the 
working conditions by paragraph (o)(3) of 29 CFR 1926.452, and 
paragraphs (c)(1) through (c)(4), (c)(8), (c)(13), (c)(14)(i), and 
(c)(16) of 29 CFR 1926.552. This decision is applicable in all states 
under Federal OSHA enforcement authority, and in the State-Plan states 
and territories when: (1) The relevant standards are the same as the 
Federal OSHA standards from which the applicants are seeking the 
permanent variance; and (2) the State-Plan state or territory does not 
object to the terms of the variance application (see Section II, Multi-
State Variance, of this notice for a description of the applicability 
of this decision in State-Plan states and territories).

VI. Order

    OSHA issues this order authorizing Kiewit Power Constructors Co. et 
al. (``the employers'') to comply with the following conditions instead 
of complying with paragraph (o)(3) of 29 CFR 1926.452, and paragraphs 
(c)(1) through (c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16) of 29 
CFR 1926.552. This order applies in Federal OSHA enforcement 
jurisdictions, and in those states with OSHA-approved State plans that 
have identical standards and have agreed to the terms of the variance.

1. Scope

    This permanent variance applies to chimney-related construction, 
including work on chimneys, chimney linings, stacks, and chimney-
related structures such as silos, towers, and similar structures 
(hereafter referred to collectively as ``chimney-related structure'' or 
``structure,'') built using jump-form and slip-form construction 
techniques and procedures, regardless of the structural configuration 
(such as tapered or straight barreled of any diameter) when such 
construction involves the use of temporary personnel hoist systems 
(hereafter referred to as ``hoist system'') for the transportation of:
    (a) Personnel to and from the bottom landing of a chimney or 
chimney-related structure to working elevations inside or outside of 
the chimney or structure using a personnel cage during construction 
work subject to 29 CFR part 1926, including construction, renovation, 
repair, maintenance, inspection, and demolition; or
    (b) Materials, but not concurrently with hoisting of personnel, 
through attachment of a hopper, material basket, concrete bucket, or 
other appropriate rigging to the hoist system to raise and lower all 
other materials inside or outside a chimney or chimney-related 
structure. See also Condition 2(c)(ii) below.

2. Application

    (a) The employer must use a hoist system equipped with a dedicated 
personnel-transport device (i.e., a personnel cage) as specified by 
this variance to raise or lower its workers and/or other construction-
related tools, equipment, and supplies between the bottom landing of a 
chimney or chimney-related structure and an elevated work location 
while performing construction inside and outside the chimney or 
structure.
    (b) Prior to initial use of the hoist system, the employer must 
have all drawings containing designs and construction details showing 
the integration of the hoist system with the construction technique and 
procedures in use (such as a slip-form construction) sealed by a 
professional engineer registered in the United States. A professional 
engineer registered in the United States also must approve any 
modifications to these drawings.\14\
---------------------------------------------------------------------------

    \14\ Any reference to ``design'' or ``designed'' in these 
conditions means that a professional engineer registered in the 
United States must approve the design.
---------------------------------------------------------------------------

    (c) When using a hoist system, the employer must:
    (i) Use the personnel cages raised and lowered by the hoist system 
solely to transport workers with the tools and small supplies necessary 
to do their work (e.g., fasteners, paint, caulk);
    (ii) Attach a dedicated material-transport device directly to the 
hoist rope solely to raise and lower all other materials and tools; and
    (iii) Attach the material-transport device directly to the hoisting 
hook and never to the personnel cage.

[[Page 60913]]

    (d) Except for the requirements specified by 29 CFR 1926.552(c)(1) 
through (c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16), the employer 
must comply fully with all other applicable provisions of 29 CFR parts 
1910 and 1926.
    (e) When an employer demonstrates that it is infeasible to comply 
with these conditions, the employer may use other devices or methods to 
comply, but only when the employer clearly demonstrates that these 
devices and methods provide its workers with protection that is at 
least equivalent to the protection afforded to them by the conditions 
of this variance.
    (f) The employer must convey any communication, written or verbal, 
required by this variance in a language that each worker can 
understand.
    (g) Replacing a personnel cage with a personnel platform or a 
boatswain's chair.
    The following provisions apply:
    (i) Personnel platform. Before using a personnel platform, an 
employer must:
    (A) Demonstrate that available space makes it infeasible to use a 
personnel cage for transporting employees;
    (B) Limit use of a personnel platform to elevations above the last 
work location that the personnel cage can reach; and
    (C) Use a personnel platform in accordance with requirements 
specified by 29 CFR 1926.1431(s), unless the employer can demonstrate 
that the structural arrangement of the chimney precludes such use.
    (ii) Boatswain's chair. Before using a boatswain's chair, an 
employer must:
    (A) Demonstrate that available space makes it infeasible to use a 
personnel platform for transporting employees;
    (B) Limit use of a boatswain's chair to elevations above the last 
work location that the personnel platform can reach; and
    (C) Use a boatswain's chair in accordance with block-and-tackle 
requirements specified by 29 CFR 1926.452(o)(3), unless the employer 
can demonstrate that the structural arrangement of the chimney 
precludes such use.

3. Definitions

    The following definitions apply to this permanent variance; these 
definitions do not necessarily apply in other contexts.
    (a) Authorized person--a person approved or assigned by the 
employer to perform a specific type of duty or duties or to be at a 
specific location or locations at the jobsite.\15\
---------------------------------------------------------------------------

    \15\ See 29 CFR 1926.32(d).
    * ANSI/ASSE kindly permitted OSHA to use the definition of this 
term from Section 3 of its A10.22-2007 standard, Safety Requirements 
for Rope-Guided and Non-guided Workers' Hoists. In some cases, OSHA 
made slight editorial revisions to the text of the definition for 
clarity.
---------------------------------------------------------------------------

    (b) Barricade--barrier used to confine or mark off limits to 
access.
    (c) Base-mounted drum hoist--a drum hoist fastened to, and 
supported by, a designed steel frame with mounting attachments for 
securing to a foundation.*
    (d) Broken rope principle--the principle by which, if the main 
support rope fails, the lack of tension will cause the safety clamps 
attached to the personnel cage to grip the guide ropes and stop it 
within 18 inches (457.2mm) (maximum) of travel from the activation 
point.*
    (e) Cage--an enclosed load-carrying unit or car, including its 
platform, frame, enclosure, and gate, in which personnel are 
transported.*
    (f) Cathead--the structure directly supporting the overhead 
sheaves.*
    (g) Competent person--one who is capable of identifying existing 
and predictable hazards in the surroundings or working conditions that 
are unsanitary, hazardous, or dangerous to employees, and who has 
authorization to take prompt corrective measures to eliminate them.\16\
---------------------------------------------------------------------------

    \16\ See 29 CFR 1926.32(f).
---------------------------------------------------------------------------

    (h) Deadman control--a constant pressure, hand-operated or foot-
operated control designed so that, when released, it automatically 
returns to a neutral or deactivated position and stops movement of the 
hoist drum.* (Referred to in this order as ``deadman control switch.'')
    (i) Design factor--the ratio of the failure load to the maximum 
designed working load. (Also referred to as ``Safety Factor'' or 
``Factor of Safety.'')* (Referred to in this order as ``safety 
factor.'')
    (j) Exclusion zone--a clearly designated zone around the bottom 
landing of the hoist system designed to restrict the zone to authorized 
persons only.
    (k) Footblock--a wire-rope block mounted at or near the bottom of a 
structure for the purpose of changing the direction of the hoisting 
rope from approximately horizontal to approximately vertical.*
    (l) Hoist (verb)--to raise, lower, or otherwise move a load in the 
air.
    (m) Hoist (noun)--same as ``hoist machine.''
    (n) Hoist area--the area (including, but not limited to, the area 
directly beneath the load) in which it is reasonably foreseeable that 
partially or completely suspended materials could fall in the event of 
an accident.
    (o) Hoist-way--a clearly designated walkway or path used to provide 
safe access to and from personnel cages.
    (p) Hoist machine--a mechanical device for lifting and lowering 
loads by winding a line onto or off a drum.
    (q) Hoist system--a collection of mechanical devices and support 
equipment assembled and used in combination for lifting and lowering 
loads, including personnel cages.
    (r) Job hazard analysis--an evaluation of the tasks or operations 
involving the use of hoist systems performed to identify potential 
hazards and to determine the necessary controls.
    (s) Lifeline--an independently suspended line used for attaching 
the employee's safety harness lanyard, usually by means of a rope grab, 
as part of the fall-arrest system.*
    (t) Line run--a condition whereby the free end of the hoistline 
(wire rope) may be overhauled by the deadweight of the downline portion 
of the hoistline on the footblock side of the cathead.*
    (u) Non-guided workman's hoist (worker's hoist)--a hoist involving 
the transportation of a person in a boatswain's chair, or equivalent, 
not attached to fixed guide ropes.* (Note: While the conditions of this 
variance do not use this term directly, ANSI A10.22-2007, referenced 
under Condition 11, uses the term.)
    (v) Qualified person--one who, by possession of a recognized 
degree, certificate, or professional standing, or who by extensive 
knowledge, training, and experience, has successfully demonstrated his 
ability to solve or resolve problems relating to the subject matter, 
the work, or the project.\17\
---------------------------------------------------------------------------

    \17\ See 29 CFR 1926.32(m).
---------------------------------------------------------------------------

    (w) Rope--wire rope, unless otherwise specified.*
    (x) Rotation-resistant rope--a wire rope consisting of an inner 
layer of strand laid in one direction covered by a layer of strand laid 
in the opposite direction. This has the effect of counteracting torque 
by reducing the tendency of the finished rope to rotate.*
    (y) Safety clamp--a fall-arresting device (or rope-grab) designed 
to grip the lifeline and prevent the person being transported in a 
boatswain's chair, or equivalent, from falling.*
    (z) Static drop test--a test performed by suspending the personnel 
cage in a fixed position with a quick-release device or equivalent 
method separating the cage from the hoistline. The quick-release device 
is tripped allowing the cage to freefall until the safety clamps (cage) 
activate and stop the cage.*

[[Page 60914]]

    (aa) Total suspended load--the combined weight of any and all 
objects and persons in transport, including the weight of the suspended 
rope.
    (bb) Weatherproof--constructed or protected so that exposure to the 
weather will not interfere with successful operations.*

4. Qualified Person and Competent Person

    (a) The employer must:
    (i) Provide one or more competent person(s) and/or qualified 
person(s), as specified in paragraphs (f) and (m) of 29 CFR 1926.32, 
who is/are responsible for ensuring that the installation, maintenance, 
and inspection of the hoist system comply with the conditions specified 
herein, and with the applicable requirements of 29 CFR part 1926 
(``Safety and Health Regulations for Construction''); and
    (ii) Ensure that a competent person(s) is/are present at ground-
level to assist in an emergency whenever the hoist system is raising or 
lowering workers.
    (b) The employer must use a qualified person to design, and a 
competent person to maintain, the cathead described under Condition 9 
(``Cathead and Sheave'') below.
    (c) The employer must train each competent person and each 
qualified person regarding the conditions of this variance and the 
requirements of 29 CFR part 1926 that are applicable to their 
respective roles.

5. Hoist Machine

    (a) Type of hoist. The employer must:
    (i) Designate the hoist machine as a hoist system; and
    (ii) Use and maintain the hoist machine in accordance with the 
manufacturer's instructions. When the manufacturer's instructions are 
not available, the employer must ensure that a qualified person 
develops written instructions, and that these instructions are 
available on-site.
    (b) Raising or lowering a transport. The employer must ensure that:
    (i) The hoist machine includes a base-mounted drum hoist designed 
to control line-speed;
    (ii) When lowering an empty or occupied transport, the drive 
components are engaged continuously (i.e., ``powered down'' or not 
``freewheeling'');
    (iii) 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, and hydraulic 
drives);
    (iv) 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
    (v) No belts are used between the power source and the winding 
drum.
    (c) Power source. The employer must power the hoist machine by an 
air, electric, hydraulic, or internal-combustion drive mechanism.
    (d) Constant-pressure control switch. The employer must equip the 
hoist machine with a hand-operated or a foot-operated constant-pressure 
control switch (i.e., a ``deadman control switch'') that deactivates 
the engine and stops the hoist rotation immediately upon release by the 
hoist operator.
    (e) Line-speed indicator. The employer must:
    (i) Equip the hoist machine with a line-speed indicator maintained 
in working order; and
    (ii) Ensure that the line-speed indicator is in clear view of the 
hoist operator during hoisting operations.
    (f) Overspeed. The employer must equip the hoist machine with an 
audible or visual overspeed-indicator alarm that will activate before 
the line-speed exceeds 275 feet per minute (includes 10% overspeed 
allowance) when transporting personnel.
    (g) Braking systems. The employer must equip the hoist machine with 
at least two (2) independent braking systems (i.e., one automatic and 
one manual) applied on the winding side of the clutch or couplings, 
with each braking system capable of stopping and holding 150 percent of 
the maximum rated line load.
    (h) Slack-rope protection. The employer must equip the hoist 
machine with a slack-rope device to prevent rotation of the winding 
drum under slack-rope conditions, or a slack-rope circuit that stops or 
limits the hoist speed to a creep speed when there is no tension on the 
load line.
    (i) Frame. The employer must ensure that the frame of the hoist 
machine is a self-supporting, rigid, steel structure, and that holding 
brackets for anchor lines and legs for anchor bolts are integral 
components of the frame in accordance with the applicable design 
drawings.
    (j) Stability. The employer must secure hoist machines in position 
to prevent movement, shifting, or dislodgement in accordance with the 
applicable design drawings.
    (k) Location. The employer must:
    (i) Locate the hoist machine far enough from the footblock to 
obtain the correct fleet angle for proper winding or 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.\18\
---------------------------------------------------------------------------

    \18\ 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.''
---------------------------------------------------------------------------

    (l) Drum and flange diameter. The employer must:
    (i) Provide a winding drum for the hoist that is at least 30 times 
the nominal 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.
    (m) Spooling of the rope. The employer must never spool the rope 
closer than two (2) inches (5.1 cm) from the outer edge of the winding-
drum flange when the hoist is in operation.
    (n) Minimum rope turns on drum. The employer must ensure that the 
drum has three turns of rope when the hoist load is at the lowest point 
of travel, and that the hoist end of the rope is mechanically secured 
to the hoist drum in accordance with the manufacturer's instructions.
    (o) Electrical system. The employer must ensure that all electrical 
equipment is weatherproof.
    (p) Grounding. The employer must ensure that the hoisting machine 
is grounded at all times in accordance with the requirements of 29 CFR 
1926.404(f).
    (q) Limit switches.
    (i) When the employer uses a hoist system with a personnel cage, 
the employer must equip the hoist system with limit switches and 
related equipment that automatically prevent overtravel of the 
transport device at the top of the supporting structure and at the 
bottom of the hoist-way or lowest landing level.
    (ii) When the employer uses a hoist system with a material-
transport device, the employer must equip the hoist system with limit 
switches and related equipment that automatically prevents overtravel 
of material-transport devices at the top of the support structure.
    (r) Guarding. The employer must guard effectively all exposed 
moving parts such as gears, projecting screws, setscrews, chains, 
cables, belts, chain sprockets, and reciprocating or rotating parts, 
that might constitute a hazard under normal operating conditions. 
(Note: OSHA considers a hoist drum

[[Page 60915]]

that has access limited to authorized persons as guarded.)
    (s) Overhead Protection. The employer must provide a shelter or 
enclosure to protect the hoist operator, hoist machine, and associated 
controls from falling or moving objects.
    6. Methods of Operation
    (a) Worker qualifications and training. The employer must:
    (i) Ensure that each personnel hoist operator and each of their 
supervisors have effective and documented training in the safe 
operation of hoist machines covered by this variance.
    (ii) Ensure that only a trained and authorized person operates the 
hoist machine.
    (iii) Provide effective and documented instruction, before initial 
use, to each worker who uses a personnel cage for transportation 
regarding the safe use of the personnel cage and its emergency systems. 
The employer must repeat the instruction periodically and as necessary 
(e.g., after making changes to the personnel cage that affect its 
operation).
    (b) Use of job hazard analyses (JHAs). The employer must:
    (i) Complete one or more JHAs for the operation of the hoist 
system; and
    (ii) Review, periodically and as necessary (e.g., after making 
changes to the hoist machine that affect its operation), the contents 
of the JHA with affected personnel.
    (c) Speed limitations. The employer must not operate the hoist at a 
speed in excess of:
    (i) 250 feet per minute \19\ or the design speed of the hoist 
system, whichever is lower, when using a personnel cage to transport 
workers, and slow the hoist appropriately at the extremes of hoist 
travel. (Note: The employer may use a line-speed that is consistent 
with the design limitations of the hoist system when hoisting material 
(i.e., using a dedicated material-transport device) on the hoist 
system); or
---------------------------------------------------------------------------

    \19\ When including 10% overspeed, the maximum hoist speed must 
not exceed 275 feet per minute.
---------------------------------------------------------------------------

    (ii) 100 feet per minute when a personnel platform or boatswain's 
chair is being used to transport workers.
    (d) Communication. The employer must:
    (i) Use an electronic voice-communication system (such as two-way 
radio) at all times for communication between the hoist operator and 
the workers located in a moving personnel cage, personnel platform, or 
boatswain's chair;
    (ii) Stop hoisting if there is (a) a failure of communication, or 
(b) activation of a stop signal from the workers in the personnel cage, 
personnel platform, or boatswain's chair; resume hoisting only when a 
supervisor determines that it is safe to do so.

7. Hoist Rope

    (a) Grade. The employer must use a wire rope for the hoist system 
(i.e., ``hoist rope'') that consists of extra-improved plow steel, an 
equivalent grade of non-rotating rope, or a regular lay rope with a 
suitable swivel mechanism.
    (b) Safety factor. For personnel hoisting, the employer must 
maintain a safety factor of at least eight and nine-tenth (8.9) times 
the total suspended load throughout the entire length of hoist rope 
(including the weight of the suspended rope).
    (c) Size. The employer must use a hoist rope that is at least one-
half (\1/2\) inch in diameter.
    (d) Rope lay. Except when using rotation-resistant rope, the 
employer must use preformed regular-lay rope. The direction of exterior 
lay (right or left) must match the drum termination and winding 
characteristics.
    (e) Inspection, removal, and replacement. The employer must:
    (i) Thoroughly inspect the hoist rope before the start of each job, 
and on completing a new set-up;
    (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 8(c) and 9(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.
    (f) Attachments. The employer must attach the rope to a personnel 
cage, personnel platform, or boatswain's chair using a positive 
connection such as:
    (i) A screw-pin shackle with the pin secured from rotation or 
loosening by mousing to the shackle body;
    (ii) A bolt-type shackle, nut, and cotter pin; or
    (iii) A positive-locking link.
    (g) Wire-rope fastenings. When the employer uses clip fastenings 
(e.g., U-bolt wire-rope clips) with wire ropes, the employer must:
    (i) Use Table H-20 of 29 CFR 1926.251 to determine the number and 
spacing of the 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 the live end resting in the clip saddle;
    (iv) Space the clips so that the distance between them is a minimum 
of six (6) times the diameter of the rope.
    (v) Tighten the clips evenly in accordance with the manufacturer's 
specification;
    (vi) Following initial application of the load to the rope, 
retighten the clip nuts to the specified torque to compensate for any 
decrease in rope diameter caused by the load; and
    (vii) Retighten the rope clip nuts periodically to compensate for 
any further decrease in rope diameter during usage.
    (h) Rotation-resistant ropes and swivels. The employer must not use 
a swivel anywhere in the system when using rotation-resistant ropes 
unless approved by the wire-rope manufacturer.
    (i) Rope protection. The employer must:
    (i) Barricade the hoisting rope between the hoisting machine and 
the footblock;
    (ii) Protect the hoisting rope from abrasive contact with the 
ground; and
    (iii) When the hoisting rope is subject to falling material or 
debris, protect it from such hazards.

8. Footblock

    (a) Type of footblock. Except as provided in paragraph (d) of this 
condition, the employer must use a footblock:
    (i) Consisting of construction-type rope blocks of solid single-
piece bail with a safety factor of at least five (5), or an equivalent 
block with roller bearings;
    (ii) Designed for the applied loading, size, and type of wire rope 
used for hoisting;
    (iii) Designed for returning the rope to the sheave groove after a 
slack-rope condition, or equipped with a guard that contains the wire 
rope within the sheave groove;
    (iv) Attached to the base according to the design drawings, with 
the anchorage being capable of sustaining at least eight (8) times the 
resultant force of the horizontal and vertical loads transmitted by the 
hoisting rope; 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 employer must ensure that the angle of 
change in the hoist rope from the horizontal to the vertical direction 
at the footblock is approximately 90[deg] (degrees).
    (c) Diameter. The employer must ensure that the line diameter of 
the footblock sheave is at least 24 times the diameter of the hoist 
rope.
    (d) Sheave substitute. The employer may substitute a properly 
mounted sheave, as specified in Condition 9

[[Page 60916]]

below (``Cathead and Sheaves''), for the footblock described in this 
condition.

9. Cathead and Sheaves

    (a) Sheave support. The employer must use a cathead (i.e., 
``overhead support'') constructed of steel or aluminum that consists of 
a wide-flange beam, or two (2) channel sections securely bolted back-
to-back, according to the design drawings, to prevent spreading.
    (b) Installation. The employer must ensure that:
    (i) All sheaves revolve on shafts that rotate on bearings; and
    (ii) The bearings are mounted securely to maintain the proper 
bearing position at all times.
    (c) Rope guides. The employer must provide each sheave with 
appropriate rope guides to prevent the hoist rope from leaving the 
sheave grooves when the rope vibrates or swings abnormally.
    (d) Diameter. The employer must use a sheave with a line diameter 
that is at least 24 times the diameter of the hoist rope.
    (e) Design basis. The employer must ensure that:
    (i) The design of the cathead assembly conforms to the American 
Institute of Steel Construction (AISC) Manual of Steel Construction or 
the Aluminum Association's Aluminum Design Manual, whichever manual is 
appropriate to the material used; and
    (ii) The cathead has a safety factor of at least five (5) for 
personnel and material hoisting.
    (f) Clearance. The employer must provide:
    (i) Adequate clearance so that there will be no contact between the 
bottom of cathead and the cable attachment at the top of the hoist 
cage; and
    (ii) A path free of obstruction (clear travel) along the full 
length of the guide ropes.
    (g) Sheave substitute. The employer may substitute construction 
blocks, of the type described in Condition 8(a)(i) above, for the top 
sheaves. (Note: See also Condition 8(d) above.)

10. Guide Ropes

    (a) Number and construction. The employer must:
    (i) Securely affix two (2) guide ropes to the cathead or to 
overhead supports designed for the purpose of accepting the guide 
ropes; and
    (ii) Ensure that the guide ropes:
    (A) Consist of steel wire rope not less than one-half (1/2) inch 
(1.3 cm) in diameter; and
    (B) Be free of damage or defect at all times per 29 CFR 
1926.552(c)(17)(iv).
    (b) Guide rope fastening and alignment tension. During the hoisting 
of personnel, the employer must ensure that one end of each guide rope 
is fastened securely to the overhead support, and that appropriate 
tension is applied at the foundation end of the rope.
    (c) Height. The employer must install the guide ropes along the 
entire height of hoist travel.

11. Personnel Cage

    (a) Construction. The employer must ensure that the frame of the 
personnel cage is capable of supporting a load that is eight (8) times 
its rated load capacity. The employer also must ensure that the 
personnel cage has:
    (i) A top and sides that are permanently enclosed (except for the 
entrance and exit);
    (ii) A floor securely fastened in place;
    (iii) Walls that consist of 14-gauge, one-half (1/2) inch 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 at least three-sixteenth (3/16) 
inch steel plate, or material of equivalent strength and impact 
resistance, that slopes to the outside of the personnel cage;
    (vi) Safe handholds (e.g., rope grips--but not rails or hard 
protrusions when their presence creates an impact hazard) that 
accommodate each occupant; and
    (vii) Attachment points for workers to secure their personal fall-
arrest protection systems.
    (b) Overhaul weight. The employer must ensure that the personnel 
cage has an overhaul weight (e.g., a headache ball) to compensate for 
the weight of the hoist rope between the cathead and footblock. In 
addition, the employer must:
    (i) Ensure that the overhaul weight is capable of preventing line 
run; and
    (ii) Use a means to restrain the movement of the overhaul weight so 
that the weight does not interfere with safe personnel hoisting.
    (c) Gate. The employer must ensure that the personnel cage has a 
gate that:
    (i) Guards the full height of the entrance opening; and
    (ii) Has a functioning mechanical latch that prevents accidental 
opening.
    (d) Operating procedures. The employer must post the procedures for 
operating the personnel cage conspicuously at the bottom landing.
    (e) Capacity. The employer must:
    (i) Ensure that the rated load capacity of the cage is at least 250 
pounds for each occupant hoisted, or actual weight if the person 
exceeds 250 pounds; and
    (ii) Hoist at any one time no more than the number of occupants for 
which the cage is designed.
    (f) Worker notification. The employer must post a sign on each 
personnel cage notifying workers of the following conditions:
    (i) The standard rated load (in pounds), as determined by the 
initial static drop-test specified by Condition 11(g) (``Static drop-
tests'');
    (ii) The designated number of occupants for which the cage is 
designed; and
    (iii) Any reduction in rated load capacity (in pounds) if 
applicable (e.g., due to a change in conditions of the specific job).
    (g) Static drop-tests. The employer must:
    (i) Conduct static drop tests of each personnel cage that comply 
with the static drop-test procedures provided in Section 13 
(``Inspections and Tests'') of American National Standards Institute 
(ANSI) standard A10.22-2007 (``Safety Requirements for Rope-Guided and 
Non-Guided Workers' Hoists'');
    (ii) Perform the initial and subsequent static drop-tests at the 
rated load of the personnel cage; 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.
    (h) Platform guides. The employer must provide:
    (i) Adequate guards, beveled or cone-shaped attachments, or 
equivalent devices at the underside of the working platform or on the 
cage to prevent catching when the cage passes through the platform at 
the top landing; and
    (ii) Sufficient clearance or adequate guarding to prevent catching 
or snagging when the cage passes through intermediate landings.

12. Safety Clamps

    (a) Fit to the guide ropes. The employer must:
    (i) Fit appropriately designed and constructed safety clamps to the 
guide ropes; and
    (ii) Ensure that the safety clamps do not damage the guide ropes 
when the cage is in motion.
    (b) Attach to the personnel cage. The employer must attach safety 
clamps to each personnel cage for gripping the guide ropes.
    (c) Operation. The employer must ensure that the safety clamps 
attached to the personnel cage:
    (i) Operate on the ``broken rope principle'';
    (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

[[Page 60917]]

    (iii) Use a pre-determined and pre-set clamping force (i.e., the 
``spring compression force'') for each hoist system.
    (d) Maintenance. The employer must keep the safety-clamp assemblies 
clean and functional at all times.

13. Overhead Protection

    The employer must provide overhead protection for workers to access 
the bottom landing of the hoist system.

14. Emergency-Escape Device

    (a) Location. For workers using a personnel cage, the employer must 
provide an emergency-escape device, adequate to allow each worker being 
hoisted to escape, 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 an occupant to raise the device to the highest 
possible escape point.
    (b) Operating instructions. The employer must ensure that written 
instructions for operating the emergency-escape device are attached to 
the device.
    (c) Training. The employer must provide effective and documented 
training, as specified by Condition 6(a)(iii) above, to each worker who 
uses a personnel cage for transportation on how to operate the 
emergency-escape device so as to effect a safe descent in case of an 
emergency.

15. Personnel Platforms and Boatswain's Chairs

    The employer must:
    (a) Comply with the applicable requirements specified by paragraphs 
(b) through (r) of 29 CFR 1926.1431, Hoisting personnel, when electing 
to replace the personnel cage with a personnel platform in accordance 
with Condition 2(g)(i);
    (b) Comply with the applicable requirements specified by 29 CFR 
1926.1431(s) and 1926.452(o)(3) when electing to replace the personnel 
platform with a boatswain's chair in accordance with Condition 
2(g)(ii).

16. Protecting Workers From Fall and Shearing Hazards

    The employer must:
    (a) Ensure that the hoist areas meet the requirements of 29 CFR 
1926.501(b)(3) for hoist areas;
    (b) Protect each worker in a hoist-way area from falling six (6) 
feet or more to lower levels by using guardrail systems that meet the 
requirements of 29 CFR 1926.502(b) or personal fall-arrest systems that 
meet the requirements of 29 CFR 1926.502(d);
    (c) Ensure that workers using personnel cages secure their fall-
arrest systems to attachment points located inside the cage if the door 
of the personnel cage needs to be opened for emergency escape; and
    (d) Provide safe access to and from personnel cages.
    (e) Shearing hazards. The employer must:
    (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 and struck-by 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 hazards or how to 
avoid the hazards, a modification occurs to an existing shearing or 
struck-by hazard, or a new shearing or struck-by 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.''

17. Exclusion Zone

    The employer must:
    (a) Establish a clearly designated exclusion zone around the bottom 
landing of the hoist system designed to restrict the zone to authorized 
persons only;
    (b) The periphery of the exclusion zone must be:
    (i) Designed to keep unauthorized persons out of the zone;
    (ii) Well defined by visible boundary demarcation;
    (iii) Established with entry and exit points; and
    (iv) Posted with readily visible warning signs limiting access.
    (c) During personnel hoisting, prohibit any worker from entering 
the exclusion zone except authorized persons involved in accessing a 
personnel cage, 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); 
and
    (d) When hoisting material with the personnel hoist system, 
prohibit any worker from entering the exclusion zone except to access a 
material-transport device, and then only when the device is near the 
bottom landing for the purpose of loading, attaching, landing, or 
tagging the load.

18. Inspections, Tests, and Accident Prevention

    (a) The employer must initiate and maintain a program of frequent 
and regular inspections of the hoist system and associated work areas 
as required by 29 CFR 1926.20(b)(2) by:
    (i) Ensuring that a competent person conducts daily visual checks 
and weekly inspections of the hoist system, and an inspection before 
reuse of the system following periods of idleness exceeding one week;
    (ii) Ensuring that the competent person conducts tests and 
inspections of the hoist system in accordance with 29 CFR 
1926.552(c)(15); and
    (iii) Ensuring that a competent person conducts weekly inspections 
of the work areas associated with the use of the hoist system.
    (b) If the competent person determines that the equipment 
constitutes a safety hazard, the employer must remove the equipment 
from service and not return the equipment to service until the employer 
corrects the hazardous condition and has the correction approved by a 
qualified person.
    (c) The employer must maintain at the jobsite, for the duration of 
the job, records of all tests and inspections of the hoist system, as 
well as associated corrective actions and repairs.

19. Welding

    (a) The employer must ensure that only welders qualified in 
accordance with the requirements of the American Welding Society weld 
components of the hoist system. Accordingly, these welders must meet 
the qualification requirements of American Welding Society (AWS) D1.1 
Structural Welding Code--Steel, or AWS D1.2 Structural Welding Code--
Aluminum, as applicable.

[[Page 60918]]

    (b) The employer must ensure that these 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'').

20. OSHA Notification

    (a) To assist OSHA in administering the conditions of this 
variance, the employer must exercise due diligence in notifying the 
Office of Technical Programs and Coordination Activities (OTPCA) at 
OSHA's national headquarters, or the appropriate State-Plan Office, of:
    (i) Any chimney-related construction operation using the conditions 
specified herein, including the location of the operation and the date 
the operation will commence, at least 15 calendar days prior to 
commencing the operation;
    (ii) Any emergency operation or short-notice project using the 
conditions specified herein, and when 15 days are not available before 
start of work, as soon as possible after the employer knows when the 
operation will commence. This information must include the location and 
date of the operation;
    (b) The employer can notify OTPCA at OSHA's national headquarters 
of pending chimney-related construction operations by:
    (i) Telephone at 202 639-2110;
    (ii) Facsimile at 202 693-1644; or
    (iii) Email at VarianceProgram@dol.gov
    (c) To assist OSHA in administering the conditions of this 
variance, the employer must exercise due diligence by informing OTPCA 
at OSHA's national headquarters as soon as possible after it has 
knowledge that it will:
    (i) Cease to do business;
    (ii) Change the location and address of the main office for 
managing the activities covered by this variance; or
    (iii) Transfer the activities covered by this variance to a 
successor company.
    (d) OSHA must approve the transfer of this variance to a successor 
company.

VII. Authority and Signature

    David Michaels, Ph.D., MPH, Assistant Secretary of Labor for 
Occupational Safety and Health, U.S. Department of Labor, 200 
Constitution Ave. NW., Washington, DC, authorized the preparation of 
this notice. OSHA is issuing this notice under the authority specified 
by 29 U.S.C. 655, Secretary of Labor's Order No. 1-2012 (76 FR 3912; 
Jan. 25, 2012), and 29 CFR part 1905.

    Signed at Washington, DC, on September 24, 2013.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2013-23625 Filed 10-1-13; 8:45 am]
BILLING CODE 4510-26-P


