[Federal Register Volume 79, Number 77 (Tuesday, April 22, 2014)][Notices][Pages 22550-22553]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-09073]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
[Docket No. OSHA-2013-0025]
Revocation of Permanent Variances Granted for Chimney
Construction
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Notice revoking permanent variances.
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SUMMARY: With this notice, the Occupational Safety and Health
Administration ("OSHA" or the "Agency") is revoking 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.
DATES: The effective date for revoking the previous variances is April
22, 2014.
ADDRESSES: 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.
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 Mr. 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/dts/otpca/variances/index.html).
SUPPLEMENTARY INFORMATION: 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. On January 31,
2014, OSHA published a Federal Register notice (79 FR 5462) in which it
proposed to revoke the previous variances. OSHA received no comments on
the proposed revocation. Therefore, with this action, OSHA is revoking
the previous variances and invites employers not covered by the uniform
variance to submit applications for an equivalent variance.
I. Background
A. Previous Chimney-Related Construction Variances
From 1973 through 2010, 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.\1\ Several of these 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 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 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
techniques and procedures, regardless of structural configuration.\2\
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, October 2, 2013, 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, when 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.
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"). 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 announced in this notice applies to the previous
variances granted in the 17 states and two territories that have
standards identical to the Federal OSHA standards.\3\
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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 this revocation action. Twenty-one
states and one territory operate State Plans 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
revocation action to these State Plans varies depending on several
factors described later in this section.
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The State Plans 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 Plans elected to exercise control over the variances, this
revocation action does 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
revocation action described herein does not apply to any variances
issued by these states involving these requirements.
III. Previous Chimney-Construction Variances
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 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 docket Federal Register Applied for uniform
Name of employer (Company) No. Date granted citation variance?
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Airtek-Karrena Chimney V-79-3............ 08/31/79.......... 44 FR 51350....... No.
Corporation.
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 V-73-13........... 04/03/73.......... 38 FR 8545........ No.
Company, Inc..
Francis Hankin and Company, V-77-12;.......... 08/31/79.......... 44 FR 51352....... No.
Inc.. V-77-6............
Gibraltar Chimney OSHA-2007-004..... 08/18/09.......... 74 FR 41742....... Yes.
International, LLC.
Hamon Custodis (formerly V-73-13........... 04/03/73.......... 38 FR 8545........ Yes.
Custodis Construction Co.
Inc., then Custodis Cuttrell,
Inc.) *.
Hoffman, Inc................... OSHA-2007-004..... 08/18/09.......... 74 FR 41742....... Yes.
International Chimney V-04-2............ 12/06/05.......... 70 FR 72659....... Yes.
Corporation.
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 V-04-2............ 12/06/05.......... 70 FR 72659....... Yes.
Matrix Service Industrial
Contractors, Inc.) *.
NAES Power Contractors V-02-1............ 09/08/03.......... 68 FR 52961....... Yes.
(formerly 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;.......... 08/31/79.......... 44 FR 51352....... No.
(formerly Pittsburgh-Des V-77-6............
Moines Steel Company) *.
Pullman Power, LLC (formerly M. V-73-13........... 04/03/73.......... 38 FR 8545........ Yes.
W. 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. V-73-13........... 04/03/73.......... 38 FR 8545........ No.
(formerly 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 current name of the company is listed. Names in parentheses are the name listed on the original variance,
followed by any subsequent names.
** Includes a subsequent interim order granted 03/26/07.
IV. 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, when 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), on January 31, 2014, OSHA published a Federal Register
notice (79 FR 5462) in which it proposed to revoke the previous
variances. OSHA received no comments on the proposed revocation,
including no comments from State Plans.
Consequently, following the publication of this revocation notice,
employers involved in chimney construction will 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
Nine 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 this revocation action, these nine employers, when engaged in
chimney construction, will have to comply with the requirements of
paragraph (o)(3) of 29 CFR 1926.452 when rigging tackle for boatswain's
chairs, and paragraphs (c)(1) through (c)(4), (c)(8), (c)(13),
(c)(14)(i), and (c)(16) of 29 CFR 1926.552 when using personnel
platforms and hoist towers. OSHA invites 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 April 16, 2014.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2014-09073 Filed 4-21-14; 8:45 am]
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