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OSHA Instruction STP 2-4.9A JAN 30 1981 Office Of State Programs

Subject: Utilization of Federal Variance Processing System for Monitoring of Approved State Plans

A. Purpose. This instruction provides a copy of the Federal variance processing system to assist in the monitoring of approved State variance programs.

B. Scope. This instruction applies OSHA-wide.

C. Cancellation. OSHA Instruction STP 2-4.9, November 7, 1975, is canceled.

D. Action. Regional Administrators shall ensure that the Federal Variance Processing System (Appendix A of this instruction) is used for monitoring the State's variance handling procedures. The time frames specified in the system should be utilized by monitors as one factor in evaluating the effectiveness of a State variance system. Those States which have variance regulations identical to 29 CFR 1905 may want to consider implementing part or all of the system, but this is not required. The State's system may differ, but must be as effective.

NOTE: This instruction has been reformatted; no substantial changes have been made.

Bruce Hillenbrand Acting Director, Federal Compliance and State Programs

DISTRIBUTION: National, Regional and Area Offices All Compliance Officers State Designees NIOSH Regional Program Directors

OSHA Instruction STP 2-4.9A JAN 30 1981 Office of State Programs

1. Variance files shall be established as follows:

a. Set up case file, number and log each application.

b. All original material shall be placed in the case file. It is prohibited to remove the case file from the office without the express permission of the Office Director.

c. Work files will be prepared for the Offices of Safety Standards Programs, Health Standards Programs, Science and Technology Assessment, and Compliance Programming for technical evaluation if necessary.

d. Files will be logged numerically, alphabetically, and by step number. The numerical file shall contain the present status of the application.

e. Forward a copy of all correspondence on variances to the appropriate individuals. Forward a copy of the complete file to the Regional Administrator and Area Director having jurisdiction.

f. A library shall be maintained by standard section number to provide a cross-reference showing each variance file which refers to the indicated section of the standard.

g. A variance flow chart shall be maintained and updated as needed to reflect any changes in the processing system.

h. A quarterly status report on variances shall be prepared for distribution to the appropriate National Office personnel and the Regional Administrators for further distribution to the Area Directors and States.

2. Initial review of a variance application shall be as follows:

a. Determination of the procedural and technical adequacy.

b. Resolution of any legal issues with the Office of the Solicitor (SOL).

OSHA Instruction STP 2-4.9A JAN 30 1981 Office of State Programs

c. Determine if a clarification of the issue is warranted to preclude unnecessary processing of a variance.

d. Determine if additional technical data (such as sketches, photos, blueprints, etc.) is necessary for evaluation. Request such information in letter of response to the applicant.

e. Determination of the need for a variance investigation on any of the facts presented in the application. A variance investigation will be made by National Office personnel and/or a staff member of the appropriate Regional Administrator having jurisdiction.

f. A field investigation shall usually be required on a request for a permanent variance concerning hazardous materials, health hazards, fire protection, tunnels and shafts, explosives, machinery, machinery guarding, electrical, and certain special industries.

g. Denial of a variance requesting an exemption from a standard shall be made within 15 days after receipt.

h. Prompt determination to deny a variance application, without prejudice to the filing of another application, if the applicant fails to show by a prepondence of the evidence that the alternative method, procedure, device, etc., is as safe as the requirements of the standards.

3. Review of the technical merits of an adequate variance application shall be as follows:

a. Consult with and obtain comments from the appropriate technical center in the Offices of Safety Standards Programs, Health Standards Programs, Science and Technology Assessment, and Compliance Programming. Consult with the appropriate Assistant Regional Administrator for Technical Support and/or the Area Director for technical information as necessary.

b. Determines the conditions and restrictions to be placed on a request for an interim order on the basis of evaluation in conjunction with the comments received from the appropriate technical centers.

OSHA Instruction STP 2-4.9A JAN 30 1981 Office of State Programs

c. Assemble the necessary technical data to prepare a notice of filing including an interim order, if requested, with conditions and restrictions for publication in the Federal Register. The notice shall include mention of the supporting evidence presented by the applicant.

d. Forward notice of filing to the Assistant Secretary for approval and publication in the Federal Register.

e. Upon publication of the notice of filing, a public reading file will be set up for inspection and copying, public comments will be reviewed and made a part of the file, request for a hearing will be reviewed with SOL and made a part of the file.

f. Forward a copy of the Federal Register publication to the applicant for posting in the workplace.

4. The following procedures shall be followed on a variance application on which a hearing is required:

a. The hearing shall be held within 60 days after the decision to hear the case.

b. A variance investigation of the applicant's facilities shall be made.

c. Consultation with the SOL to determine the issue to be presented in the hearing.

d. In conjunction with the SOL a notice of hearing shall be prepared and published in the Federal Register, which will include the variance background information, date, time and place of the proceeding. A copy of the Federal Register notice will be forwarded to the participant.

e. The Office of Variance Determination will provide the SOL with management support to include expert witnesses, arrangement of hearing room, court reporter, stenographic transcripts, coordination, collection, and maintenance of files and background materials for hearing presentations.

f. A determination as to the need of a variance staff member to attend a hearing will be handled on a case by case basis.

OSHA Instruction STP 2-4.9A JAN 30 1981 Office of State Programs

g. Provide post hearing support to SOL in the preparation of a hearing brief.

h. Consult with SOL on decisions reached as a result of a hearing concerning the variance order to be published or appeal of hearing decision if necessary.

5. The following procedures shall be followed on a variance application on which a hearing is not required:

a. Comments received as a result of the Federal Register- notice shall be reviewed for technical merit. Appropriate technical centers shall receive a copy of all comments.

b. Evaluate technical data in conjunction with any comments received. Determine if a variance investigation is necessary on any of the facts.

c. Consult with the appropriate technical centers in the Offices of Safety Standards Programs, Health Standards Programs, Science and Technology Assessment, and Compliance Programming on the final order and obtain their input and concurrence. If necessary, convene a Variance Review Panel consisting of one staff member from the Offices of Safety Standards Programs, Health Standards Programs, Science and Technology Assessment, Compliance Programming, and Variance Determination to reach a decision on the application.

d. Assemble the necessary technical data and prepare the rationale to justify that the applicant's alternative method, procedure, device, etc., has been proven to be as safe as the requirements of the standard.

e. The final order granting the variance shall include the specific conditions and restrictions under which the variance is granted. Supporting evidence shall be discussed in the order.

f. Decision on a variance application shall be made within 45 days after notice of filing in the Federal Register when no comments are received. Final order shall be prepared and forwarded to the SOL for review.

g. Decision on a variance application shall be made within 90 days after notice of filing in the Federal Register when comments are received. Final order shall be prepared and forwarded to the SOL for review.

OSHA Instruction STP 2-4.9A JAN 30 1981 Office of State Programs

h. Forward the final order to the SOL for legal review. Consult with SOL if necessary.

i. SOL will forward the final order to the Assistant Secretary for approval and publication in the Federal Register.

j. Forward a copy of the Federal Register publication to the applicant for posting in the workplace.

6. The following procedures shall be followed on a variance application which concerns a standard either undergoing revision or which has been proposed for modification in the Federal Register.

a. Determine if the applicant will be in compliance with the new standard being given consideration.

b. Determine the scope and impact the application has on industry at large. Consult with the Offices of Safety Standards Programs, Health Standards Programs, Science and Technology Assessment, and Compliance Programming concerning the need for an OSHA Instruction (Program Directive) as an interim solution to the problem until the new rule is promulgated.

c. Contact the appropriate Area Director to determine if a citation is involved. If the applicant has been cited, advise the Area Director of the action to be taken on the application so he may proceed accordingly.

d. Promptly advise the applicant of the status of the pending modification of the standard and the action to be taken on his application. Such as: to be held pending final rule or to be closed on the basis of an OSHA Instruction. A copy of the OSHA Instruction shall be forwarded to the applicant.

e. Applications in this category must all meet the criteria for a de minimis violation.

f. Applicants shall be advised and forwarded a copy of the new standard when it is promulgated.

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