No specific form is available for a variance application or other documents that may be filed with the application. Therefore, OSHA is providing the following references, and the procedures described below, to assist applicants in dealing with the variance process.
An authorized representative of the employer must sign a legible, original variance application, and submit it to OSHA along with six copies of the application and any other documents filed with the original application. The application should be addressed to the Assistant Secretary for Occupational Safety and Health, U.S. Department of Labor, but sent under cover addressed as follows:
U.S. Department of Labor/OSHA
Office of Technical Programs and Coordination Activities
Room N3655
200 Constitution Avenue, NW
Washington, D.C. 20210
If you have any questions or comments, please contact the Office Technical Programs and Coordination Activities at (202)693-2110.
Please note that, if the facility for which an employer is requesting a variance is located solely within the jurisdiction of a state or territory with an approved plan (i.e., approved under Section 18 of the OSH Act), the variance application should be sent directly to the state or territory. At present, 22 states and territories have OSHA-approved safety and health plans authorizing them to enforce health and safety regulations in private industry with their own compliance officials. However, if the employer is requesting the same variance for multiple facilities, at least one of which is located in a state or territory not having an approved plan, then the employers should send the entire application to the Assistant Secretary at the address shown above. Care should be taken to follow the specific requirements for this situation detailed in 29 CFR 1905.10(b)(11) and 29 CFR 1905.11(b)(8). (See Fact Sheet No. OSHA 93-22 [55 KB, PDF]).
A class or group employers in the same industry may apply jointly for a variance provided an authorized representative for each employer signs the application; the application identifies each employer’s affected facilities; and OSHA has proper authority to grant the variance (see the preceding paragraph).
Upon receipt of a variance application, the Office of Technical Programs and Coordination Activities conducts a preliminary review of the application for procedural and administrative accuracy to ensure that the application contains all required information, including information about employee notification. If the application satisfies procedural and administrative requirements, OSHA will conduct a technical evaluation of the variance application to determine if it would provide employees the requisite level of protection. If OSHA determines that the application does not provide the requisite level of protection, or is defective in some other way, the Agency will communicate to the applicant by letter why the application is defective. If, after conducting a technical review of an application, OSHA concludes that the variance application is adequate, OSHA will publish the application in the Federal Register. This notice invites comments from interested parties during a specified time period. If the applicant requests an interim order to use the proposed alternative pending a decision on the request for permanent, temporary, or national-defense variance, and the Assistant Secretary finds the interim order to be appropriate, OSHA will publish the interim order as part of the notice.
OSHA also makes copies of the application available at appropriate OSHA Regional and Area Offices for public viewing. Confidentiality of trade secrets is maintained as provided in Section 15 of the OSH Act.
During the comment period, the applicant, affected employees, and other specified parties may request a hearing on the application. The Assistant Secretary will determine whether to grant the hearing request after determining the credibility of the request.
Based on a review of the record as a whole, the Office of Technical Programs and Coordination Activities will recommend to the Assistant Secretary either to grant or deny the variance application. If the Assistant Secretary grants the variance, OSHA will publish the final order to grant the variance in the Federal Register. If the determination is to deny the application, OSHA will send a letter of denial to the applicant stating the reasons for the decision. If the denial is without prejudice, the applicant may submit a new variance application containing additional information for evaluation. The applicant also may contest a denial by requesting a hearing.
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