OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.

December 6 1988

Mr. Robert Norling
Corporate Safety Officer
Penhall International
Post Office Box 4609
Anaheim, California 92803

Dear Mr. Norling

This is in response to your letter dated November 4, in which you request a permanent variance from section 1926.102(a)(2)-Eye and Face Protection of The Safety and Health Regulations for Construction.

One of the requisites for the grant of a permanent variance is evidence that the proposed alternative would provide employment and places of employment to employees which are as safe and healthful as those required by the standard from which a variance is sought. In your situation you are proposing that your employees be allowed to use protective equipment which is designed for exposure other than that which they experience.

For example, the only exposure for which Table E-2 of the standard suggests the use of a filter lens shade number less dense than number 3 for protection against radiant energy, is in soldering. You have presented no evidence that using an extended torch for acetylene cutting would be equivalent to soldering. In addition, the type of eye protectors you proposed using are designed for applications quite different from those to which your employees are exposed.

Based upon the lack of substantive evidence that your proposal would not reduce the degree of protection to your employees, we have determined that your request does not meet the requirements for an effective application.

Therefore, no further action will be taken on your application.

Your employees should be informed of this decision in the same manner they were informed of you request for variance.

If you have any further questions, please contact this office at (202) 523-7193.



James J. Concannon
Office of Variance Determination