[Federal Register Volume 79, Number 77 (Tuesday, April 22, 2014)]
[Notices]
[Pages 22550-22553]
From the Federal Register Online via the Government Publishing 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: [email protected].
    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: [email protected]. 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

[[Page 22551]]

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

[[Page 22552]]

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.),

[[Page 22553]]

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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