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• Publication Date: 01/31/2014
• Publication Type: Notices
• Fed Register #: 79: 5462-5466
• Standard Number: 1905; 1905.11; 1905.13(a)(2); 1926.452; 1926.452(c)(1); 1926.452(c)(4); 1926.452(c)(8) ; 1926.452(c)(13) ; 1926.452(c)(14)(i) ; 1926.552(c)(16); 1952
• Title: Proposed Revocation of Permanent Variances Granted for Chimney Construction

[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]
BILLING CODE 4510-26-P


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