[Federal Register Volume 76, Number 243 (Monday, December 19, 2011)][Notices][Pages 78698-78701]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-32369]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
[Docket No. OSHA-2011-0054]
Proposed Revocation of Permanent Variances
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Notice.
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SUMMARY: Between 1975 and 1977, the Occupational Safety and Health
Administration ("OSHA" or "the Agency") granted permanent variances
to 24 companies engaged in the construction of cylindrical steel tanks.
The variances specified several conditions that served as an
alternative means of compliance to the falling-object-protection and
fall-protection requirements of the standard on general requirements
for scaffolds in effect during this period. In 1996, OSHA revised Sec.
1926.451 to include provisions that duplicated the conditions specified
by these variances. Therefore, OSHA believes the alternative means of
compliance granted by the variances is no longer necessary, and is
proposing to revoke the variances.
DATES: Submit comments and requests for a hearing (postmarked, sent, or
received) by February 2, 2012. Hearing requests must provide a short
and plain statement detailing (1) how the proposed revocation would
affect the requesting party, and (2) what the requesting party would
seek to show on the subjects or issues involved.
ADDRESSES: Electronic. Submit comments and requests for a hearing
electronically at http://www.regulations.gov, which is the Federal
eRulemaking Portal. Follow the instructions online for submitting
comments.
Facsimile. OSHA allows facsimile transmission of comments that are
10 pages or fewer in length (including attachments), as well as hearing
requests. Send these comments and requests to the OSHA Docket Office at
(202) 693-1648; hard copies of these comments are not required. Instead
of transmitting facsimile copies of attachments that supplement their
comments (e.g., studies and journal articles), commenters may submit
these attachments, in triplicate hard copy, to the OSHA Docket Office,
Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200
Constitution Ave. NW., Washington, DC 20210. These attachments must
clearly identify the sender's name, date, subject, and docket number
(i.e., OSHA-2011-0054) so that the Agency can attach them to the
appropriate comments.
Regular mail, express delivery, hand (courier) delivery, and
messenger service. Submit three copies of comments and any additional
material (e.g., studies and journal articles), as well as hearing
requests, to the OSHA Docket Office, Docket No. OSHA-2011-0054,
Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200
Constitution Ave. NW., Washington, DC 20210; telephone: (202) 693-2350.
Please contact the OSHA Docket Office at (202) 693-2350 for information
about security procedures concerning the delivery of materials by
express delivery, hand delivery, and messenger service. The hours of
operation for the OSHA Docket Office and Department of Labor are 8:15
a.m. to 4:45 p.m., E.S.T.
Instructions. All submissions must include the organization's name
and the OSHA docket number (i.e., OSHA Docket No. OSHA-2011-0054). OSHA
places comments and other materials, including any personal
information, in the public docket without revision, and these materials
may be available online at http://www.regulations.gov. Therefore, the
Agency cautions commenters about submitting statements they do not want
made available to the public, or submitting comments that contain
personal information (either about themselves or others) such as Social
Security numbers, birth dates, and medical data.
Docket. To read or download submissions or other material in the
docket, go to http://www.regulations.gov or to the OSHA Docket Office
at the address above. All documents in the docket are listed in the
http://www.regulations.gov index; however, some information (e.g.,
copyrighted material) is not publicly available to read or download
through this Web site. All submissions, including copyrighted material,
are available for inspection and copying at the OSHA Docket Office.
FOR FURTHER INFORMATION CONTACT: General information and press
inquiries. Contact Frank Meilinger, Director, OSHA Office of
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210; telephone: (202) 693-1999.
Technical information. Contact Stefan Weisz, Office of Technical
Programs and Coordination Activities, Room N-3655, OSHA, U.S.
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210;
telephone: (202) 693-2110; fax: (202) 693-1644.
Copies of this Federal Register notice. Electronic copies of this
notice are available at http://www.regulations.gov. Electronic copies
of this notice, as well as news releases and other relevant
information, are available on OSHA's Web site at http://www.osha.gov.
SUPPLEMENTARY INFORMATION:
I. Background
OSHA's general requirements for scaffolds used in the construction
industry are set forth at 29 CFR 1926.451. OSHA adopted this standard
from Section 107 of the Contract Work Hours and Safety Standards Act
(Construction Safety Act) (40 U.S.C. 3704) under Section 6(a) of the
Occupational Safety and Health Act of 1970 (OSH Act; 29 U.S.C. 651,
655) in 1971 (see 36 FR 7340). Paragraphs (a)(4) and (a)(5) of Sec.
1926.451 required employers to erect, on scaffolds more than 10 feet
above the ground or floor, toeboards having a minimum height of four
inches on all open sides and open ends of the platforms. These
requirements prevented tools and other equipment from falling from the
scaffold and striking employees below. To ensure the structural
integrity of scaffolds, Sec. 1926.451(a)(5) required employers to
erect guardrail supports at intervals not to exceed eight feet, while
Table L-3 in Sec. 1926.451(a)(10) set maximum permissible spans for 2-
x 10-inch (or wider) planks.
Between 1975 and 1977, OSHA granted 24 permanent variances from the
falling-object-protection and fall-protection requirements in Sec.
1926.451(a)(4), (a)(5), and (a)(10) to employers using scaffolds in the
construction of cylindrical steel tanks. Construction of these tanks
involves attaching curved steel plates together to form the outer
surface of a tank. After attaching a horizontal layer (ring) of steel
plates around the circumference of the existing shell, employees raise
the scaffolds to attach the next ring of steel plates onto the existing
shell. Steel mills typically fabricate the steel plates to a standard
length. After delivery of the steel plates to a worksite, and prior to
attaching the plates to form the outer surface of a tank, employers
attach scaffolding and guardrail supports to brackets welded onto the
steel plates. The standard length and radius of the steel plates makes
it difficult for employers to properly space scaffolding and guardrail
supports as specified by Sec. 1926.451. To address this problem,
employers developed special procedures and methods, including special
scaffolding that is more mobile, flexible, and holds fewer workers
than conventional scaffolding.
A. Alternative Means of Compliance Specified in the 24 Variances
The variances OSHA granted to the 24 employers did not require
scaffolds used in the construction of cylindrical steel tanks to have
the toeboards required by Sec. 1926.451(a)(4) and (a)(5). Instead, the
variances specified that the employers must implement the following
conditions as an alternative means of compliance: (1) Ensure that
employees keep loose tools and equipment in secure, well designed,
containers; and (2) use ropes to demarcate the area below the scaffold
and post clearly visible signs indicating "overhead work above." The
variances also stated that no more than three employees could work on a
10\1/2\-foot plank at any time.
Since the contour of the steel plates on a tank's outer surface is
curved, and the adjacent edge of the scaffold is straight, there is an
open space between them. As a result, the variances provided for the
installation of a taut wire rope between the innermost edge of the
scaffold and the curved plate of a tank's outer surface to serve as a
safety line in place of a guardrail assembly. In the event the open
space on either side of the rope exceeded 12 inches, the employer had
to install a second wire rope or guardrail. Also, the variances set
10\1/2\ feet as the maximum distance between brackets used to attach
scaffolding and guardrail supports, and stated that employers had to
weld such brackets to the steel plates.
Additionally, the variances required employers to use scaffold
planks of rough full-dimensioned 2-inch x 12-inch x 12-foot Douglas Fir
or Southern Yellow Pine of Select Structural Grade. The Douglas Fir
planking had to have at least a 1,900 fiber stress and 1,900,000
modulus of elasticity, while the Yellow Pine planking had to have at
least 2,500 fiber stress and 2,000,000 modulus of elasticity. Employers
had to secure all planking from movement or overlapped in accordance
with Sec. 1926.451(a)(12). The variances also required that employers
construct guardrails of taut wire rope, and support the guardrails
using angle irons attached to brackets welded to the steel plates.
These guardrails had to be at least equivalent in strength, stability,
and height to the 2-inch x 4-inch x 8-foot wooden rails addressed in
Sec. 1926.451(a)(5). Finally, the variances provided that employers
space guardrail supports at intervals no greater than 10\1/2\ feet
apart.
B. OSHA's Current Standard
On August 30, 1996, OSHA issued a final rule revising its
construction safety standards regulating the design, construction, and
use of scaffolds (61 FR 46026). In the preamble to the final rule, OSHA
stated that it was updating its scaffold standards and, when possible,
establishing performance-oriented criteria to protect employees from
scaffold-related hazards such as falls, falling objects, structural
instability, electrocution, and overloading. OSHA also explained that
it was not issuing specific requirements for the tank-building industry
because the Agency believed it addressed adequately the requirements
for tank scaffolds under the general provisions of this final rule (see
61 FR 46033). In this regard, the final rule revised the requirements
in Sec. 1926.451(a)(4), (a)(5), and (a)(10). These revisions are set
forth in Sec. 1926.451, as well as non-mandatory Appendix A of 29 CFR
part 1926, subpart L.
OSHA's current standard at Sec. 1926.451(h) addresses the
protection of employees from scaffold-related falling-object hazards.
Section 1926.451(h)(1) requires employers to ensure that employees
working on scaffolds wear hardhats, and to protect these employees from
falling hand tools, debris, and other small objects. Section
1926.451(h)(2) sets forth several options for employers to use to
prevent tools, materials, or equipment from falling from a scaffold and
striking employees below. Paragraphs (h)(2)(i), (ii), (iii), (iv), and
(v) of Sec. 1926.451 specify these options, respectively, as follows:
(1) Using barricades on lower levels to exclude employees from areas
where falling objects might land; (2) erecting toeboards along the edge
of platforms for a distance sufficient to protect workers below, when
the platforms are more than 10 feet above lower levels; (3) erecting
paneling or screening when tools or other materials piled on the
platform reach a height higher than the top edge of a toeboard; (4)
installing a guardrail system designed so that the openings will
prevent the passage of falling objects; and (5) installing debris nets,
catch platforms, or canopies to protect workers below scaffolds from
falling objects.
Appendix A to subpart L addresses scaffold specifications, and
provides non-mandatory guidance to assist employers in complying with
the requirements in subpart L. Paragraph (z) of this appendix provides
guidance regarding the use of tank builder's scaffolds. In the preamble
to the 1996 final rule, OSHA noted that the introductory text of the
appendix clearly indicates that employers following the appendix will
be in compliance with the requirements of the standard that pertain to
scaffolds used in the construction of cylindrical tanks. However, OSHA
stated further that employers choosing not to follow the appendix still
must comply with applicable requirements in Sec. 1926.451,
particularly paragraphs (a) and (f) (see 61 FR 46033).
Paragraph (z)(1) of the appendix states that the maximum distance
between the brackets used to attach the scaffolding and guardrail
supports shall be no more than 10\1/2\ feet, while paragraph (z)(2)
provides that no more than three employees shall occupy a 10\1/2\-foot
scaffolding plank at any time. Paragraph (z)(3) requires that employers
install a taut wire or synthetic rope supported on the scaffold
brackets at the scaffold-plank level between the innermost edge of the
scaffold platform and the curved plates of the tank's outer surface to
serve as a safety line in place of an inner guardrail assembly when the
space between the scaffold platform and the tank exceeds 12 inches. If
the space on either side of the rope exceeds 12 inches, employers must
install a second wire or synthetic rope in an appropriate location, or
install guardrails in accordance with Sec. 1926.451(e)(4), to reduce
the open space to less than 12 inches.
Additionally, paragraph (z)(4) provides that employers must use
scaffold planks of rough full-dimensioned 2- x 12-inch Douglas Fir or
Southern Yellow Pine of Select Structural Grade. Douglas Fir planks
must have a fiber stress of at least 1,900 lb/m\2\ and a modulus of
elasticity of at least 1,900,000 lb/m\2\, while Yellow Pine planks must
have a fiber stress of at least 2,500 lb/m\2\ and a modulus of
elasticity of at least 2,000,000 lb/m\2\. Finally, paragraph (z)(5)
states that employers must construct guardrails of a taut wire or
synthetic rope, and support these guardrails using angle irons attached
to brackets welded to the steel plates. These guardrails shall comply
with Sec. 1926.451(e)(4), and employers must space the guardrail
supports at intervals no greater than 10\1/2\ feet apart.
The following table compares the conditions specified in the 24
variances with the analogous paragraphs of the current Sec. 1926.451.
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Provision in current Sec.
Variance condition 1926.451 and Appendix A of 29
CFR 1926, Subpart L
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Condition (1) or (a): The applicants' 1926.451(h)(1): In addition to
loose tools and equipment shall be wearing hardhats each employee
kept in well-designed tool containers. on a scaffold shall be
This does not include fitup bars, key provided with additional
plates, key channels, or long handled protection from falling hand
mauls which may be placed on the tools, debris, and other small
scaffold plank during the time they objects through the
are required for work. The loose tool installation of toeboards,
containers shall be secured to prevent screens, or guardrail systems,
their upset or dislodgment from the or through the erection of
scaffold area. debris nets, catch platforms,
or canopy structures that
contain or deflect the falling
objects. When the falling
objects are too large, heavy
or massive to be contained or
deflected by any of the above-
listed measures, the employer
shall place such potential
falling objects away from the
edge of the surface from which
they could fall and shall
secure those materials as
necessary to prevent their
falling.
Condition (2) or (b): Areas beneath and 1926.451(h)(2)(i): The area
far enough away from the base of the below the scaffold to which
scaffold to contain anything that objects can fall shall be
falls from above shall be roped off barricaded, and employees
and posted with clearly visible signs shall not be permitted to
stating: "Danger Overhead Work.". enter the hazard area.
Condition (3) or (c): The space between 1926.451 Appendix A (z)(3): A
the innermost edge of the scaffold taut wire or synthetic rope
platform and the curved plate supported on the scaffold
structure of the tank shell shall not brackets shall be installed at
exceed 12" without protective the scaffold plank level
measures. A taut wire rope supported between the innermost edge of
on scaffold brackets at plank level the scaffold platform and the
may be used to divide any space curved plate structure of the
exceeding 12" in lieu of using a tank shell to serve as a
guardrail or tie-off system. safety line in lieu of an
inner guardrail assembly where
the space between the scaffold
platform and the tank exceeds
12 inches (30.48 cm). In the
event the open space on either
side of the rope exceeds 12
inches (30.48 cm), a second
wire or synthetic rope
appropriately placed, or
guardrails in accordance with
1926.451(e)(4), shall be
installed in order to reduce
that open space to less than
12 inches (30.48 cm).
Condition (4) or (d): Not more than 1926.451 Appendix A (z)(2): Not
three employees shall be working on a more than three employees
10' 6" span of scaffold planking at shall occupy a 10 feet 6 inch
any time. span of scaffold planking at
any time.
Condition (5) or (e): The maximum 1926.451 Appendix A (z)(1): The
distance between brackets to which maximum distance between
scaffolding and guardrail supports are brackets to which scaffolding
attached shall be 10' 6". These and guardrail supports are
brackets shall be welded to the steel attached shall be no more than
plates. 10 feet 6 inches.
Condition (6) or (f): Scaffold planks 1926.451 Appendix A (z)(4):
or rough full-dimensioned 2" x 12" x Scaffold planks of rough full-
12' Douglas Fir or equivalent dimensioned 2-inch (5.1 cm) x
planking, shall be used. The Douglas 12-inch (30.5 cm) Douglas Fir
Fir shall have at least a 1,900 fiber or Southern Yellow Pine of
stress and 1,900,000 modulus of Select Structural Grade shall
elasticity. Three planks with full be used. Douglas Fir planks
thickness 2" x 10" x 12' dimensions shall have a fiber stress of
may be used in lieu of two 2" x 12" at least 1900 lb/in\2\
x 12' planks provided that they are (130,929 n/cm\2\) and a
clamped or bonded together at the modulus of elasticity of at
midpoint of the span in order to least 1,900,000 lb/in\2\
spread the weight of the employees. (130,929,000 n/cm\2\), while
Yellow Pine planks shall have
a fiber stress of at least
2500 lb/in\2\ (172,275 n/cm\2\
and a modulus of elasticity of
at least 2,000,000 lb/in\2\)
(137,820,000 n/cm\2\).
Condition (7) or (g): All planking 1926.451(f)(15)(ii): The
shall be secured from movement or platform units shall be
overlapped in accordance with secured to the scaffold to
1926.451(a)(12). prevent their movement;
Condition (8) or (h): Guardrails shall 1926.451 Appendix A (z)(5):
be constructed of taut wire rope, and Guardrails shall be
shall be supported by angle irons constructed of a taut wire or
attached to brackets welded to the synthetic rope, and shall be
steel plates. These guardrails shall supported by angle irons
be at least of equivalent strength, attached to brackets welded to
stability and height as those required the steel plates. These
for the 8 foot span of 2" x 4" wood guardrails shall comply with
rails by 29 CFR 1926.451(a)(15). Sec. 1926.451(e)(4).
Guardrail supports shall be located at Guardrail supports shall be
no greater than 10' 6" intervals. located at no greater than 10
feet 6 inch intervals.
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Based on the comparisons in this table, OSHA finds that current
Sec. 1926.451 and Appendix A to 29 CFR part 1926, subpart L, which
replaced the standards from which the employers received the variances,
substantially duplicate the conditions specified by these variances,
and that the current standards and the variances impose equivalent
compliance burdens on employers. Accordingly, the current Sec.
1926.451 and its associated appendix provide employees with protection
that is at least equal to the protection afforded to them by the
conditions specified by the variances. Therefore, OSHA is proposing to
revoke the variances and require that the employers comply instead with
the appropriate provisions of Sec. 1926.451 and Appendix A to 29 CFR
part 1926, subpart L.
The following table provides information about the variances
proposed for revocation by this notice; interested parties may refer to
the Federal Register cite in the table to obtain detailed information
about the variances.
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OSHA Standards affected
Name of employer (company) * Variance No. Date granted Federal Register cite **
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American Bridge Division, United V-74-44, V-74-57................... 05/06/75 40 FR 19715........................ 1926.451(a)(4), (5),
States Steel Corp. and (10).
Baker Tank Company................... V-77-7, V-77-1..................... 08/09/77 42 FR 40269........................ 1926.451(a)(4), (5),
and (10).
Bethlehem Steel Corporation, V-74-44, V-74-57................... 05/06/75 40 FR 19715........................ 1926.451(a)(4), (5),
Fabricated Steel Construction and (10).
Division.
Brown Minneapolis Tank and V-73-31, V-74-30................... 04/04/75 40 FR 15139........................ 1926.451(a)(4), (5),
Fabricating Co. and (10).
Caldwell Tanks, Inc.................. V-73-31, V-74-30................... 04/04/75 40 FR 15139........................ 1926.451(a)(4), (5),
and (10).
Chattanooga Boiler & Tank Co......... V-73-31, V-74-30................... 04/04/75 40 FR 15139........................ 1926.451(a)(4), (5),
and (10).
Chicago Bridge & Iron Co............. V-73-31, V-74-30................... 04/04/75 40 FR 15139........................ 1926.451(a)(4), (5),
and (10).
Edwards Tank Erection, Inc........... V-76-4, V-76-5..................... 09/24/76 41 FR 41976........................ 1926.451(a)(4), (5),
and (10).
Fisher Tank and Welding Co........... V-73-31, V-74-30................... 04/04/75 40 FR 15139........................ 1926.451(a)(4), (5),
and (10).
General American Transportation V-75-35............................ 04/27/76 41 FR 17642........................ 1926.451(a)(4), (5),
Corporation. and (10).
Gorbett Brothers, Inc................ V-75-35............................ 04/27/76 41 FR 17642........................ 1926.451(a)(4), (5),
and (10).
Graver Tank & Manufacturing Co....... V-73-31, V-74-30................... 04/04/75 40 FR 15139........................ 1926.451(a)(4), (5),
and (10).
Marathon Steel Co. (formerly Allison V-73-31, V-74-30................... 04/04/75 40 FR 15139........................ 1926.451(a)(4), (5),
Steel Manufacturing Co.). and (10).
Newport News Industrial Corporation V-76-4, V-76-5..................... 09/24/76 41 FR 41976........................ 1926.451(a)(4), (5),
of Ohio. and (10).
Nooter Corp.......................... V-73-31, V-74-30................... 04/04/75 40 FR 15139........................ 1926.451(a)(4), (5),
and (10).
Pittsburgh-Des Moines Steel Co....... V-73-31, V-74-30................... 04/04/75 40 FR 15139........................ 1926.451(a)(4), (5),
and (10).
Prairie Tank and Construction Company V-75-35............................ 04/27/76 41 FR 17642........................ 1926.451(a)(4), (5),
and (10).
PSF Industries, Inc.................. V-74-44, V-74-57................... 05/06/75 40 FR 19715........................ 1926.451(a)(4), (5),
and (10).
Richmond Engineering Company, Inc.... V-77-7, V-77-1..................... 08/09/77 42 FR 40269........................ 1926.451(a)(4), (5),
and (10).
Tank Services, Inc................... V-75-35............................ 04/27/76 41 FR 17642........................ 1926.451(a)(4), (5),
and (10).
The Bishopric Products, Co........... V-73-31, V-74-30................... 04/04/75 40 FR 15139........................ 1926.451(a)(4), (5),
and (10).
Universal Tank & Iron Works.......... V-73-31, V-74-30................... 04/04/75 40 FR 15139........................ 1926.451(a)(4), (5),
and (10).
Western Petro-Chem. Services, Inc.... V-73-31, V-74-30................... 04/04/75 40 FR 15139........................ 1926.451(a)(4), (5),
and (10).
Wyatt, Division U.S. Industries...... V-73-31, V-74-30................... 04/04/75 40 FR 15139........................ 1926.451(a)(4), (5),
and (10).
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* As listed on the original variance.
** From OSHA's original scaffold standard issued in 1971.
II. State Plan States
Twenty-two states administer OSHA-approved occupational safety and
health programs, or State Plans, that have jurisdiction over private-
sector employers within the state. These states 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. OSHA granted the 24 variances at issue under Federal authority
with nationwide applicability, without reference to the State Plans.
Subsequently, each State Plan state assumed responsibility for most
occupational safety and health activities in the state, including
enforcement, standards development, and granting variances.
Accordingly, each State Plan state adopted state scaffolding standards
that are identical to, or at least as effective as, the current Federal
standard at 29 CFR 1926.451. If OSHA revokes the variances described
herein, affected employers operating in one or more of these State Plan
states must determine if the applicable state standards are identical
to, or different from, OSHA's. These companies must meet any state-
specific requirements in these standards, or apply directly to the
State Plan Office for a variance from the state standard. Information
on State Plans is available on OSHA's Web site at http://www.osha.gov/dcsp/osp/index.html,
and includes links to each state's Web site, as
well as information on state-specific standards.
III. 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, directed the preparation of this
notice. OSHA is issuing this notice under the authority specified by
Section 6(d) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 655), Secretary of Labor's Order No. 4-2010 (75 FR 55355), and
29 CFR part 1905.
Signed at Washington, DC, on December 13, 2011.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2011-32369 Filed 12-16-11; 8:45 am]
BILLING CODE 4510-26-P
