Proposed Revocation of Permanent Variances

Summary

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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.

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Federal Register, Volume 76 Issue 243 (Monday, December 19, 2011)

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

Page 78698

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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,

Page 78699

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.

Page 78700

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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).

Page 78701

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

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