Where a State standard is identical to a Federal standard addressed to the same hazard, an employer or
group of employers seeking a temporary or permanent variance from such standard, or portion thereof, to be applicable to employment or places of
employment in more than one State, including at least one State with an approved plan, may elect to apply to the Assistant Secretary for such variance
under the provisions of 29 CFR Part 1905, as amended.
Actions taken by the Assistant Secretary with respect to such application for a variance, such as
interim orders, with respect thereto, the granting, denying, or issuing any modification or extension thereof, will be deemed prospectively an
authoritative interpretation of the employer or employers' compliance obligations with regard to the State standard, or portion thereof, identical to
the Federal standard, or portion thereof, affected by the action in the employment or places of employment covered by the application.
Nothing herein shall affect the option of an employer or employers seeking a temporary or permanent
variance with applicability to employment or places of employment in more than one State to apply for such variance either to the Assistant Secretary
or the individual State agencies involved. However, the filing with, as well as granting, denial, modification, or revocation of a variance request or
interim order by, either authority (Federal or State) shall preclude any further substantive consideration of such application on the same material
facts for the same employment or place of employment by the other authority.
Nothing herein shall affect either Federal or State authority and obligations to cite for noncompliance
with standards in employment or places of employment where no interim order, variance, or modification or extension thereof, granted under State or
Federal law applies, or to cite for noncompliance with such Federal or State variance action.
[40 FR 25450, June 16, 1975]