[Federal Register Volume 79, Number 21 (Friday, January 31, 2014)][Notices][Pages 5462-5466]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-02015]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
[Docket No. OSHA-2013-0025]
Proposed Revocation of Permanent Variances Granted for Chimney
Construction
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Notice proposing to revoke permanent variances and requesting
comment.
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SUMMARY: In this notice, the Occupational Safety and Health
Administration ("OSHA" or the "Agency") is proposing to revoke
permanent variances that it granted between 1973 and 2010 to 24
companies engaged in chimney construction (hereafter, "previous
variances"). The previous variances provided the companies with an
alternative means of complying with provisions of OSHA standards
regulating boatswains' chairs, personnel platforms, and hoist towers.
On October 2, 2013, OSHA published a Federal Register notice (78 FR
60900) in which it updated the previous variances with a single,
permanent variance ("the uniform variance"). The 2013 Federal
Register notice granted the uniform variance to a number of the
companies that held previous variances.
OSHA determined that, compared to the previous variances, the
uniform variance: (1) provides more consistency across the conditions
specified by the variance, thereby expediting OSHA's enforcement of the
conditions; (2) allows employers to use updated technology and industry
practices; and (3) increases worker safety. Therefore, OSHA is
proposing to revoke the previous variances and to invite employers not
covered by the uniform variance to submit applications for an
equivalent variance.
DATES: Parties affected by this proposed action must submit comments
and requests for a hearing (postmarked, sent, or received) by March 3,
2014.
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, and clearly indicate the docket number in the submission
(OSHA-2013-0025).
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; OSHA does not require hard copies of comments or
hearing requests.
Instead of transmitting facsimile copies of attachments that
supplement their comments (e.g., studies and journal articles),
commenters may submit these attachments 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-2013-0025) so that the Agency can attach them to the
appropriate comments.
Regular mail, express delivery, hand delivery, and messenger
(courier) service. Submit comments and any additional material (e.g.,
studies and journal articles), as well as hearing requests, to the OSHA
Docket Office, Docket No. OSHA-2013-0025, Technical Data Center, Room
N-2625, OSHA, U.S. Department of Labor, 200 Constitution Ave. NW.,
Washington, DC 20210; telephone: (202) 693-2350 (OSHA's TTY number is
(877) 889-5627). Contact the OSHA Docket Office for information about
security procedures concerning the delivery of materials by express
delivery, hand delivery, and messenger service. The hours of operation
for the OSHA Docket Office and Department of Labor are 8:15 a.m. to
4:45 p.m., e.t.
Instructions. All submissions must include the Agency name and the
OSHA docket number (i.e., OSHA Docket No. OSHA-2013-0025). OSHA will
place comments and other material, including any personal information,
in the public docket without revision, and these comments and material
will 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 comments or other material in the
docket, go to http://www.regulations.gov or to the OSHA Docket Office
at the address above. The electronic docket for this proposed
revocation established at http://www.regulations.gov lists most of the
documents in the docket; 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. Contact
the OSHA Docket Office for assistance in locating docket submissions.
FOR FURTHER INFORMATION CONTACT: Information regarding this notice is
available from the following sources:
Press inquiries: Contact Mr. 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;
email: Meilinger.francis2@dol.gov.
General and technical information: Contact David Johnson, Director,
Office of Technical Programs and Coordination Activities, Directorate
of Technical Support and Emergency Management, Occupational Safety and
Health Administration, U.S. Department of Labor, 200 Constitution
Avenue NW., Room N-3655, Washington, DC 20210; telephone: (202) 693-
2110; email: johnson.david.w@dol.gov. OSHA's Web page includes
information about the Variance Program (see http://www.osha.gov/otpca/nrtl/index.html).
Copies of the Federal Register notice: Electronic copies of this
Federal Register notice are available at http://www.regulations.gov.
This Federal Register notice, as well as other relevant information,
also is available on OSHA's Web page at http://www.osha.gov.
SUPPLEMENTARY INFORMATION:
I. Background
A. Previous Chimney-Related Construction Variances
From 1973 to through 2010, the Agency granted permanent variances
to a number of chimney-related 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.\1\ Several of
these early variances (hereafter, "the previous variances") limited
the scope of the variances only to chimneys constructed using jump-form
construction techniques and procedures (see, for example, 38 FR 8545
granted April 3, 1973, and 71 FR 10557 granted March 1, 2006), while
more recently granted chimney-construction variances, limited the scope
of the variances to the construction of tapered chimneys using jump-
form construction techniques and procedures (see, for example, 75 FR
22424; April 28, 2010). In addition, the conditions specified in the
previous variances became somewhat inconsistent over time, and none of
these variances kept pace with updated construction methods used by,
and technological advances taking place in, the chimney-construction
industry.
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\1\ 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).
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B. Grant of the Uniform Chimney-Construction Variance
In the period from November 2012 through January 2013, 15 employers
involved in chimney construction submitted applications for a new
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)"). 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 employers to transport
employees and construction tools and materials to and from elevated
worksites located inside and outside these structures.
As in the past, the employers sought a permanent variance from
paragraph (o)(3) of 29 CFR 1926.452, which regulates the tackle used to
rig a boatswain's chair, as well as paragraphs (c)(1) through (c)(4),
(c)(8), (c)(13), (c)(14)(i), and (c)(16) of 29 CFR 1926.552, which
regulate personnel platforms and hoist towers. OSHA consolidated these
variance applications into a single application and published the
uniform variance application, along with a request for public comment,
in the Federal Register on March 21, 2013 (78 FR 17432). On October 2,
2013, the Agency granted the permanent variance (hereafter, "the
uniform variance") in a notice published in the Federal Register (78
FR 60900). The scope of the uniform variance included both chimneys and
chimney-related structures (such as silos and towers), as well as jump-
form and slip-form construction \2\ techniques and procedures,
regardless of structural configuration. Additionally, the uniform
variance added or revised conditions that improved worker safety,
including: Condition 3 (Definitions), which defines 29 key terms used
in the variance, usually technical terms, for the purpose of
standardizing and clarifying the meaning of these terms; Condition 5
(Hoist Machines), which updates the requirements for the design and use
of hoist machines based on guidance provided by American National
Standards Institute (ANSI) A10.22-2007; and Condition 6 (Methods of
Operation), which expands and clarifies the training requirements for
both the operators of the hoist machine and the employees who ride in
the cage (this condition adopted several provisions of ANSI A10.22-
2007). (See the table and preamble in 78 FR 60900, 60904-60910, for an
extensive description of the differences between the uniform variance
and a previous variance published in 2010.)
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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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In view of the Agency's history with the variances granted for
chimney-related construction, OSHA determined that it should replace
the previously granted variances (1973 through 2010) with the recently
published uniform variance. In doing so, OSHA believes that the uniform
variance, compared to the outdated previous variances: (1) Provides
more consistency across the conditions specified by the variance,
thereby expediting OSHA's enforcement of the conditions; (2) allows
employers to use updated technology and industry practices; and (3)
increases worker safety.
In developing the uniform variance, OSHA sent a letter on December
21, 2012, to all employers holding previous chimney-construction
variances (see Ex. OSHA-2013-0025-0001 for a sample letter). The letter
informed them of the process of developing a uniform variance, and of
OSHA's plan to revoke all previous chimney-construction variances once
OSHA published the uniform variance. In response to this letter, 15
chimney-construction employers holding previous variances applied for
the new uniform variance.
II. Multi-State Variances
Twenty-seven states 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").\3\ Of these states, 18 states have
standards identical to the Federal OSHA standards. These states are:
Alaska, Arizona, Hawaii, Indiana, Iowa, Kentucky, Maryland, Minnesota,
Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South
Carolina, Tennessee, Vermont, Virginia, and Wyoming. Accordingly, the
revocation action proposed in this notice would apply to the previous
variances granted in the 18 states that have standards identical to the
Federal OSHA standards.
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\3\ State-Plan programs operated by four states and one
territory (Connecticut, Illinois, New Jersey, New York, and the
Virgin Islands) limit their occupational safety and health authority
to public-sector (i.e., state and local government) employers only.
Federal OSHA retains authority over private-sector employers in
these states and territory; therefore, private-sector employers in
these states and territory are subject to the previous variances
granted by Federal OSHA, and to the revocation action proposed
herein. Twenty-one states and one territory operate State-Plan
programs that exercise occupational safety and health authority over
both public-sector employers and private-sector employers; these
states and territory 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. The
application of this proposed revocation action to these State-Plan
programs would vary depending on several factors described later in
this section.
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The State-Plan programs operated by Hawaii, Iowa, Kentucky, and
South Carolina either declined to accept the terms of previous
variances or stated that affected employers must apply to the state
program for a state variance prior to initiating chimney construction.
Because these State-Plan programs elected to exercise control over the
variances, this proposed revocation action would not apply to any
chimney-construction variances granted under these State-Plan programs.
State-Plan programs operated by four states (California, Michigan,
Utah, and Washington) have requirements in their construction standards
for the tackle used to rig a boatswain's chair, personnel platforms,
and hoist towers that differ from the requirements specified by the
Federal OSHA standards. In these cases, only the State-Plan program has
authority to issue variances from these requirements. Therefore, the
proposed revocation action described herein would not apply to any
variances issued by these states involving these requirements.
III. Supplementary Information
The following table provides information about the previous
variances granted by OSHA between 1973 and 2010 for chimney
construction, and which are subject to the proposed revocation action
described in this notice.\4\ Refer to the Federal Register citation in
the table to obtain detailed information about these previous
variances.
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\4\ As noted above, the previous variances addressed the
requirements of paragraph (o)(3) of 29 CFR 1926.452, which regulates
the tackle used to rig a boatswain's chair, and paragraphs (c)(1)
through (c)(4), (c)(8), (c)(13), (c)(14)(i), and (c)(16) of 29 CFR
1926.552, which regulate personnel platforms and hoist towers.
Table 1--Previous Chimney Variances
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Variance or Date Federal Register Applied for uniform
Name of employer (company) Docket No. granted citation variance?
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Airtek-Karrena Chimney Corporation V-79-3 08/31/79 44 FR 51350.......... No
Avalotis Corporation.............. OSHA-2009-005 04/28/10 75 FR 22424.......... Yes
Bowen Engineering Corporation V-04-1 O3/01/06 71 FR 10557.......... Yes
(merged with Mid-Atlantic Boiler
and Chimney, Inc., formerly
Alberici-Mid Atlantic, LLC)*.
Calaveras Power Partners, Inc..... OSHA-2007-0046 07/17/09 74 FR 34789.......... No
Commonwealth Dynamics, Inc........ V-04-1 03/01/06 71 FR 10557.......... Yes
Continental-Heine Chimney Company, V-73-13 04/03/73 38 FR 8545........... No
Inc..
Francis Hankin and Company, Inc... V-77-12; V-77-6 08/31/79 44 FR 51352.......... No
Gibraltar Chimney International, OSHA-2007-004 08/18/09 74 FR 41742.......... Yes
LLC.
Hamon Custodis (formerly Custodis V-73-13 04/03/73 38 FR 8545........... Yes
Construction Co. Inc., then
Custodis Cuttrell, Inc.)*.
Hoffman, Inc...................... OSHA-2007-004 08/18/09 74 FR 41742.......... Yes
International Chimney Corporation. V-04-2 12/06/05 70 FR 72659.......... Yes
Karrena-International, LLC........ V-04-2 12/06/05 70 FR 72659.......... Yes
Kiewit Power Constructors Co.***.. OSHA-2007-004 08/18/09 74 FR 41742.......... Yes
Matrix Service, Inc............... OSHA-2007-0046 07/17/09 74 FR 34789.......... No
Matrix SME, Inc. (formerly Matrix V-04-2 12/06/05 70 FR 72659.......... Yes
Service Industrial Contractors,
Inc.)*.
NAES Power Contractors (formerly V-02-1 09/08/03 68 FR 52961.......... Yes
American Boiler & Chimney
Company)*.
Oak Park Chimney Corporation...... V-02-1 09/08/03 68 FR 52961.......... No
PDM Steel Service Centers V-77-12; V-77-6 08/31/79 44 FR 51352.......... No
(formerly Pittsburgh-Des Moines
Steel Company)*.
Pullman Power, LLC (formerly M. W. V-73-13 04/03/73 38 FR 8545........... Yes
Kellogg Co., then Pullman Power
Products Corporation)*.
R and P Industrial Chimney Co., V-04-1 03/01/06 71 FR 10557.......... Yes
Inc..
Rust Constructors, Inc. (formerly V-73-13 04/03/73 38 FR 8545........... No
Rust Engineering Company)*.
T. E. Ibberson Company............ OSHA-2007-0046 07/17/09 74 FR 34789.......... Yes
TIC-The Industrial Company........ OSHA-2007-0046 07/17/09 74 FR 34789.......... Yes
Zachry Construction Corporation... OSHA-2007-0046 07/17/09 74 FR 34789.......... No
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*The first name is the current name of the company; names in parentheses are, first, the name listed on the
original variance, followed by any subsequent names.
**Includes a subsequent interim order granted 03/26/07.
IV. Proposed Revocation of Previous Variances
Based on its review of the record and the findings described in
this Federal Register notice, OSHA determined that the conditions
specified in the uniform variance published on October 2, 2013 (78 FR
60900) provide consistent and technologically sound measures designed
to replace and supersede the previous chimney-construction variances
granted by OSHA prior to 2010. Accordingly, OSHA finds that the uniform
variance, compared to the previous variances: (1) Provides more
consistency across the conditions specified by the variance, thereby
expediting OSHA's enforcement of the conditions; (2) allows employers
to use updated technology and industry practices; and (3) increases
worker safety. Therefore, under the authority granted by 29 CFR
1905.13(a)(2), OSHA is proposing to revoke the previous chimney-
construction variances. Consequently, employers involved in chimney
construction would either have to comply with 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 or,
if granted a uniform variance, comply with the conditions of that
variance. OSHA granted the uniform variance to the following 15
employers:
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
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
Eight employers hold previous variances and did not apply for the
uniform variance. These employers are:
Airtek-Karrena Chimney Corporation, 1776 Heritage Drive,
Quincy, MA 02171
Calaveras Power Partners, Inc., P. O. Box 241769, San
Antonio, TX 78224
Continental-Heine Chimney Company, Inc., 127 North
Dearborne Street, Chicago, IL 60602
Francis Hankin and Company, Inc., 117 Crockford Boulevard,
Scarborough, Ontario, Canada, MIR 3B9
Matrix Service, Inc., 3810 Bakerview Spur, Bellingham, WA
98226
Oak Park Chimney Corporation, 1800 Des Plaines Avenue,
Forest Park, IL 60130
PDM Steel Service Centers (formerly Pittsburgh-Des Moines
Steel Company) 3535 East Myrtle Street, Stockton, CA 95205
Rust Constructors, Inc. (formerly Rust Engineering Co.), 2
Perimeter Park South, Suite 300W, Birmingham, AL 35243
Zachry Construction Corporation, 527 Logwood, San Antonio
TX 78221
Under the proposed revocation action, these employers would have to
comply with 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 when engaged in chimney construction. OSHA
would invite these employers, and any other employers seeking an
alternative means of complying with these provisions, to submit
applications for a variance containing conditions that are equivalent
to the conditions specified by the uniform variance.
V. 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 January 28, 2014.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2014-02015 Filed 1-30-14; 8:45 am]
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