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Federal Registers - Table of Contents
• Publication Date: 03/11/2016
• Publication Type: NOTICE
• Fed Register #: 81:12969-12972
• Standard Number: 1905; 1905.5; 1905.10; 1905.11; 1905.12; 1905.14(b)(3); 1910.110(b)(6)(ii); 1910.134; 1910.142(b)(2); 1910.1200; 1926.501(b)(1); 1926.803; 1952; 1952.9; 1952.172
• Title: Authorization To Open Dockets of Denied Variance Applications for Public Access

[Federal Register Volume 81, Number 48 (Friday, March 11, 2016)]
[Notices]
[Pages 12969-12972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05488]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket Nos. OSHA-2014-0025, 0026, OSHA-2015-0004, 0007, 0011, 0016, 
0023]


Authorization To Open Dockets of Denied Variance Applications for 
Public Access

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Notice.

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SUMMARY: In this notice, OSHA announces its intent to update the 
publication of the dockets of variance applications that it denied in 
the period from 2014 to 2015. Previously OSHA published a Federal 
Register notice announcing the denied variance application dockets for 
the 2010 to 2014 (79 FR 76387) period. OSHA is making this information 
available to the public to enhance transparency concerning the variance 
process, to assist the public in understanding the variance process, 
and to reduce errors in applying for future variances.

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: Meilinger.francis2@dol.gov.
    General and technical information: Contact Mr. Kevin Robinson, 
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; phone: 
(202) 693-2110 or email: robinson.kevin@dol.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    The principal objective of the Occupational Safety and Health Act 
of 1970 ("the OSH Act") is "to assure so far as possible every 
working man and woman in the Nation safe and healthful working 
conditions and to preserve our human resources" (29 U.S.C. 651 et 
seq.). In fulfilling this objective, the OSH Act authorizes the 
implementation of "such rules and regulations as [the Assistant 
Secretary of Labor for Occupational Safety and Health] may deem 
necessary to carry out [his/her] responsibilities under this Act" (29 
U.S.C. 657(g)(2)).
    Under several provisions of the OSH Act, employers may apply for 
four different types of variances from the requirements of OSHA 
standards. Employers submit variance applications voluntarily to OSHA, 
and the applications specify alternative means of complying with the 
requirements of OSHA standards. The four types of variances are 
temporary, experimental, permanent, and national-defense variances. 
OSHA promulgated rules implementing these statutory provisions in 29 
CFR part 1905 ("Rules of Practice for Variances, Limitations, 
Variations, Tolerances, and Exemptions under the William-Steiger 
Occuptional Safety and Health Act of 1970"). The following paragraphs 
further describe each of these four types of variances.
    Temporary variance.\1\ This variance delays the date on which an 
employer must comply with requirements of a newly issued OSHA standard. 
The employer must submit the variance application to OSHA after OSHA 
issues the standard, but prior to the effective date of the standard. 
In the variance application, the employer must demonstrate an inability 
to comply with the standard by its effective date "because of 
unavailability of professional or technical personnel or of materials 
and equipment needed to come into compliance with the standard or 
because necessary construction or alteration of facilities cannot be 
completed by the effective date." Employers also must establish that 
they are "taking all available steps to safeguard [their] employees 
against the hazards covered by the standard," and that they have "an 
effective program for coming into compliance with the standard as 
quickly as practicable." (29 U.S.C. 655(b)(6)(A)).
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    \1\ See Section 6(b)(6)(A) of the OSH Act (29 U.S.C. 655) and 29 
CFR 1905.10.
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    Experimental variance.\2\ OSHA may grant this variance as an 
alternative to complying with the requirements of a standard whenever 
it determines that the variance "is necessary to permit an employer to 
participate in an experiment . . . designed to demonstrate or validate 
new and improved techniques to protect the health or safety of 
employees." (29 U.S.C. 655(b)(6)(C)).
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    \2\ See Section 6(b)(6)(C) of the OSH Act (29 U.S.C. 655).
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    Permanent variance.\3\ This variance authorizes employers (or 
groups of employers) to use alternative means of complying with the 
requirements of OSHA standards when the employers demonstrate, with a 
preponderance of
evidence, that the proposed alternative protects employees at least as 
effectively as the requirements of the standards.
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    \3\ See Section 6(d) of the OSH Act (29 U.S.C. 655) and 29 CFR 
1905.11.
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    National defense variance.\4\ Under this variance, OSHA, "may 
provide such reasonable limitations and may make such rules and 
regulations allowing reasonable variations, tolerances, or exceptions 
to and from" the requirements of its standards that it "find[s] are 
necessary and proper to avoid serious impairment of the national 
defense" (29 U.S.C. 665). Such variances can be in effect no longer 
than six months without notifying the affected employees and affording 
them an opportunity for a hearing.
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    \4\ See Section 16 of the OSH Act (29 U.S.C. 665) and 29 CFR 
1905.12.
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    Additionally, OSHA developed optional stardardized variance 
application forms, and obtained the requried Office of Management and 
Budget (OMB) approval for the information collection requirement (OMB 
control no. 1218-0265/Expires 6/30/2018), in order to assist employers 
in meeting the paperwork requirements contained in these regulations. 
Further, in order to facilitate and simplify the completion of the 
complex variance applications and reduce the information collection 
burden on applicants, OSHA made the variance application forms and 
accompanying completion instructions, as well as variance application 
checklists, accessible from its "How to Apply for a Variance" Web 
page (http://www.osha.gov/dts/otpca/variances/index.html).

II. Denied Variance Applications

    Generally, when receiving a variance application, OSHA conducts an 
administrative and technical review, which includes verifying an 
applicant completed the application fully and included required 
information and evaluating the effectiveness of the alternate safety 
measures proposed by the applicant. Part of OSHA's administrative 
variance application evaluation is to establish a docket for each case. 
OSHA then places the variance application and other related materials 
submitted by the applicant in the docket without revision. Initially, 
these materials are not made public.
    Upon completion of the technical review, if OSHA determines to move 
forward with the grant of a variance, it develops and publishes a 
preliminary Federal Register notice (FRN) announcing the variance 
application, grant of an interim order (when such was requested by the 
applicant), and request for public comment. When the preliminary FRN is 
published, OSHA makes the case docket public and available online at 
the Federal eRulemaking Portal (http://www.regulations.gov).
    Following publication of the preliminary FRN, interested parties 
may submit their comments and attachments electronically to the Federal 
eRulemaking Portal. OSHA monitors public comments received (if any), 
and at the expiration of the comment period reviews and analyzes them. 
Based on the review results, OSHA develops and publishes the final FRN 
granting or denying the variance.
    If OSHA determines not to move forward with the grant of a 
variance, it does not publish the variance docket. A variance 
application may be denied for a variety of reasons upon completion of 
the technical review. Often these reasons stem from errors employers 
commit in completing their applications. Reviewing the variance 
application forms' completion instructions, the application checklists, 
and previously denied variance applications prior to completing a 
variance application will assist applicants in determining whether 
their applications are complete and appropriate, as well as to avoid 
common errors. The following are examples of common errors that lead to 
the denial of applications:
    Denied--unresolved citation. An employer cannot use a variance 
application to avoid or resolve an existing citation while contesting 
the citation. If OSHA has issued a citation on the standard (or 
provision of the standard) for which an employer is seeking a variance, 
OSHA may deny the application or place it on hold until the parties 
resolve the citation (29 CFR 1905.5). Therefore, in order to avoid this 
type of error, a variance application should not contain a request for 
resolving a contested citation.
    Denied--exemption requested. An application for a variance is a 
request proposing use of alternate means for protecting workers that 
are at least as effective as the standards from which the applicant is 
seeking the variance. Therefore, in order to avoid this type of error, 
a variance application should not contain a request for an outright 
exemption or waiver that permits the applicant to avoid complying with 
the requirements of an applicable standard. Only national-defense 
variances may provide outright exemptions from OSHA standards (29 CFR 
1905.12).
    Denied--not as protective as standard. The technical review of the 
variance application found that it failed to demonstrate by a 
preponderance of evidence that the proposed alternate means of 
compliance protects workers at least as effectively as the protection 
afforded by the standard from which the applicant is seeking the 
variance (29 CFR 1905.11). Therefore, in order to avoid this type of 
error, a variance application should contain proposed alternate safety 
measures that are at least as effective as the protection afforded by 
the applicable standard.
    Denied--standard or interpretation already exists. The applicant 
proposes use of alternate means that OSHA previously determined 
acceptable for use by issuing a letter of interpretation (LOI). Since 
use of the proposed alternate was allowed prior to the filing of the 
variance application, the application is unnecessary. The applicant may 
use the means of compliance in the manner determined acceptable and 
described by the LOI.
    Denied--site located solely in State-Plan state.\5\ When obtaining 
a variance for establishment(s) located solely in states that operate 
their own OSHA-approved occupational safety and health plans, 
employer(s) must follow the variance-application procedures specified 
by the State Plan(s) covering states in which they have 
establishment(s) named in the variance application(s) (29 CFR 1952). 
Therefore, in order to avoid this type of error, a variance application 
for establishment(s) located solely in State Plan states should be 
filed in the state(s) where the establishments are located.
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    \5\ Section 18 of the OSH Act of 1970 encourages States to 
develop and operate their own job safety and health programs.
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    Denied--application missing side-by-side comparison. When obtaining 
a multi-state variance (involving at least one location in a state 
under Federal OSHA authority and one location in a state under State 
Plan authority) and the application does not contain side-by-side 
comparison of federal and state plan standard(s), the application will 
be denied. Therefore, in order to avoid this type of error, the 
application for a multi-state variance should contain a side-by-side 
comparison of the federal standard from which the employer is 
requesting a variance with the corresponding state standard. The 
corresponding state standard must be essentially identical in substance 
to the federal standard.
    Denied--application inappropriately requests product or product 
design approval. The variable working conditions at jobsites and the 
possible alteration or misapplication of an otherwise safe piece of 
equipment could easily create hazardous conditions beyond the control 
of the equipment manufacturer. Therefore, it is OSHA's
policy not to approve or endorse products or product designs.\6\ In 
order to avoid this type of error, a variance application should not 
contain a request for product or product design approval.
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    \6\ See LOI dated December 30, 1983 @ http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=19170.
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    Denied--application inappropriately addresses proposed standard. 
The applicant is seeking a variance from a proposed standard that has 
not been published as a final rule and is subject to possible 
alteration and revision. A variance is an alternate means of compliance 
that is different from the means of compliance required by a specific 
(in effect) OSHA standard (29 CFR 1905.11). Therefore, in order to 
avoid this type of error, a variance application should not contain a 
request for a variance from a proposed standard that has not been 
published as a final rule.
    Denied--application inappropriately addresses a "performance" 
standard or "definition" in a standard. The variance application did 
not propose use of alternate means of compliance from a standard that 
describes a specific method for meeting its safety requirements. 
Instead, the applicant is requesting a variance from a "performance 
standard," "definition," "scope," "applicability" or "purpose" 
portion(s) of a standard that leaves "open ended" or "unspecified" 
the means and methods for meeting its safety requirements (29 CFR 
1905.11). Therefore, in order to avoid this type of error, a variance 
application should not contain a request for a variance from a 
performance standard or definition in a standard.
    Denied--application inappropriately requests a temporary variance 
filed after the standard's effective date. As stated earlier in this 
SOP, a temporary variance is an alternative means of implementing a new 
standard during a specified period of time that it will take the 
employer to come into compliance with the new standard. Employers must 
request a temporary variance prior to the effective date of the new 
standard (Section 6(b)(6)(A) of the OSH Act and 29 CFR 1905.10). 
However, the applicant incorrectly submitted a request for a temporary 
variance after the effective date of the standard.
    Denied--application inappropriately requests a variance from the 
General Duty clause (Section 5(a)(1) of the OSH Act). OSHA does not 
have authority to grant variances from Section 5(a)(1) of the Act. 
Section 5(a)(1) is not a specific occupational safety and health 
standard, but a statutory provision of the Occupational Safety and 
Health Act (OSH Act). This section states that "Each employer shall 
furnish to each of his employees employment and a place of employment 
which are free from recognized hazards that are causing or likely to 
cause death or serious physical harm to his employee." Experience 
indicates that generally an applicant seeks a Section 5(a)(1) variance 
as a result of receiving a General Duty clause citation. A citation 
issued under Section 5(a)(1) constitutes a serious violation that must 
be abated in such a manner as to provide a safe and healthful workplace 
that is free from recognized hazards that are causing or likely to 
cause death or serious physical harm.
    Denied--application inappropriately requests a variance from a 
consensus standard. A variance from a consensus standard (developed by 
industry or other standards development organization (SDO)) is 
inappropriate and cannot be granted because variances only apply to 
specific occupational safety and health standards or regulations 
promulgated by OSHA. Consensus standards developed by industry or other 
standard development organizations are not specific occupational safety 
and health standards promulgated by OSHA.
    Withdrawn--During the administrative and technical evaluations, 
OSHA will evaluate a variance application for appropriateness, 
completeness, and effectiveness. When an application fails to pass the 
administrative review, OSHA will inform the applicant regarding the 
application's defect(s). At that point, an applicant may choose to 
amend its application to fix its defect(s) or withdraw its application 
without prejudice. For example, an applicant may withdraw its 
application when it determines that: a variance is no longer necessary; 
its application is incomplete and the applicant chooses to stop 
pursuing the matter; or the applicant's work place is located solely in 
a state operating an OSHA-approved State Plan so that the application 
should have been submitted to the State Plan.

II. Denial of Multi-State Variance Applications

    Under the provisions of Section 18 of the OSH Act of 1970 and 29 
CFR part 1952, states can develop and operate their own job safety and 
health programs. OSHA approves and monitors State Plans and provides up 
to 50 percent of an approved plans' operating costs. Currently, there 
are 22 states and territories operating complete State Plans (covering 
both the private sector and State and local government employees) and 
six states covering state and local government employees only. States 
with OSHA-approved State Plans may have additional requirements for 
variances.
    For more information on these requirements, as well as State Plan 
addresses, visit OSHA's State Plans Web page: (http://www.osha.gov/dcsp/osp/index.html).
    Employers filing a variance application for multiple workplaces 
located in one or more states under Federal OSHA authority may submit 
their applications to Federal OSHA by meeting the requirements set 
forth in the OSH Act and the implementing regulations (29 CFR 1905). 
Employers filing a variance application for multiple workplaces located 
in one or more states exclusively under State Plan authority must 
submit their applications in that particular state or states. Note that 
State Plans vary in their applicability to public sector and private 
sector places of employment. For example, Virginia's plan does not 
cover private-sector maritime employers, while California's plan covers 
most private-sector maritime employer activities, except as specified 
by 29 CFR 1952.172. Employers should follow the variance-application 
procedures specified by the State Plan(s) for states in which they have 
an establishment named in the variance application.
    Applicants with workplaces in one or more states under State Plan 
authority and at least one state under Federal OSHA authority may apply 
to Federal OSHA for a variance by meeting the requirements set forth in 
the OSH Act and the implementing regulations (29 CFR 1905 and 1952). 
When applicants perform work in a number of states that operate OSHA-
approved safety and health programs, such states (and territories) have 
primary enforcement responsibility over the work performed within their 
borders. Under the provisions of 29 CFR 1952.9 ("Variance affecting 
multi-state employers") and 29 CFR 1905.14(b)(3) ("Actions on 
applications"), a permanent variance or interim order granted, denied, 
modified, or revoked by the Agency becomes effective in State Plans as 
an authoritative interpretation of the applicants' compliance 
obligation when: (1) The variance request involves the same material 
facts for the places of employment; (2) the relevant state standards 
are the same as the Federal OSHA standards from which the applicants 
are seeking the variance; and (3) the State Plan does not object to the 
terms of the variance application.

III. Granting Public Access to Dockets of Denied Variance Applications

    OSHA has denied a large number of variance applications since its 
inception in the early 1970s. As previously indicated in this notice, 
because OSHA denied these applications, initially they were not 
published in the Federal Register for public review.\7\
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    \7\ Sections 6(b), 6(d), and 16 of the OSH Act and 29 CFR 1905 
set out the laws and regulations applicable to Variances. Whereas, 
these provisions require OSHA to announce variance applications and 
grants by publication in the Federal Register, no such provisions 
are in place for denied variance applications.
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    However, in 2010, OSHA made public a sizable number of illustrative 
variance applications (approximately 200) that it denied during the 
period from 1995 through 2010.
    Further, on December 22, 2014, OSHA published an FRN announcing the 
dockets of the variances that it denied from 2010 through 2014 (79 FR 
76387). The dockets for these denied or withdrawn variance applications 
are accessible online at the Federal eRulemaking Portal (http://www.regulations.gov), as well as on OSHA's "Denied and Withdrawn 
Variance Applications for 1995-2014" Web page: (http://www.osha.gov/dts/otpca/variances/denied_withdrawn95-10.html).
    OSHA made this information available to the public to enhance 
transparency concerning the variance process, to assist the public in 
understanding the variance process, and to reduce errors in applying 
for future variances.
    This action was consistent with the policy established by the Open 
Government Directive, M-10-06, issued by the Office of Management and 
Budget on December 8, 2009 (http://www.whitehouse.gov/sites/default/files/omb/assets/memoranda_2010/m10-06.pdf*).
    OSHA published the dockets of the variance applications that the 
Agency denied during 2014-2015 \8\ on the Federal eRulemaking Portal 
and OSHA's "Denied and Withdrawn Variance Applications for 1995-2015" 
Web page. These denied variance application dockets are presented in 
the table below:
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    \8\ Completed between the governmental fiscal years of October 
1, 2010 and September 30, 2014.

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                                                               Standard from which    Date of denial                                 Reason denied or
             Docket ID                    Company name         variance  requested     or withdrawal           State(s)                  withdrawn
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OSHA-2015-0016....................  J.W. Fowler, Co........  1926.803...............       12/4/2015  ND........................  Withdrawn--variance
                                                                                                                                   not necessary.
OSHA-2015-0023....................  Wahlco--D.W. Tool......  General-duty clause           10/5/2015  MO........................  Denied--No variances
                                                              Section 5(a)(1) of the                                               from the general-duty
                                                              Act.                                                                 clause.
OSHA-2015-0011....................  Rosenwach Tank Co. LLC.  1926.501(b)(1).........      06/04/2015  NY........................  Denied--Not as
                                                                                                                                   protective as
                                                                                                                                   standard.
OSHA-2015-0007....................  Avantor Performance      1910.1200; Appendix C,       04/14/2015  PA, NJ, KY................  Denied--Not as
                                     Materials, Inc.          (C.2.3.1).                                                           protective as
                                                                                                                                   standard.
OSHA-2015-0004....................  Devin Kieschnick (DK)    1910.142(b)(2).........      03/10/2015  TX........................  Denied--Not as
                                     Farms.                                                                                        protective as
                                                                                                                                   standard and
                                                                                                                                   exemption requested.
OSHA-2014-0026....................  Transfield Services....  1910.134...............      12/15/2014  TX, CA....................  Withdrawn--variance
                                                                                                                                   not necessary.
OSHA-2014-0025....................  Union Pacific Railroad   1910.110(b)(6)(ii).....       10/8/2014  IL........................  Denied--not as
                                     (UPRR).                                                                                       protective as
                                                                                                                                   standard and
                                                                                                                                   exemption requested.
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Authority and Signature

    David Michaels, Ph.D., MPH, Assistant Secretary of Labor for 
Occupational Safety and Health, 200 Constitution Avenue NW., 
Washington, DC 20210, authorized the preparation of this notice. 
Accordingly, the Agency is issuing this notice pursuant to 29 U.S.C. 
655, Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012), 
and 29 CFR part 1905.

    Signed at Washington, DC, on March 7, 2016.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2016-05488 Filed 3-10-16; 8:45 am]
 BILLING CODE 4510-26-P


*Accessibility Assistance: Contact OSHA's Directorate of Standards and Guidance at (202) 693-1950 for assistance accessing PDF documents.


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