OSHA INSTRUCTION STD 6.1 OCTOBER 30, 1978

OSHA PROGRAM DIRECTIVE #76-5

TO: REGIONAL ADMINISTRATORS ASSISTANT REGIONAL ADMINISTRATORS

Subject: Variance Policy and Procedures

1. Purpose. The purpose of this program directive is to consolidate recent developments in the procedures for handling Federal variance applications and to clarify their impact on State plans. States will be expected to develop "at least as effective as" procedures for handling their variance applications. This program directive also provides performance standards against which State Plans should be monitored.

2. Directives Affected. None

3. Background. After reviewing the Federal variance procedures, the General Accounting Office (GAO) made several recommendations for establishing time frames within which certain actions would occur and for establishing or formalizing certain other variance procedures. Most of these procedures apply to requests for both temporary and permanent variances.

This directive also contains other items which will be considered in determining the effectiveness of State variance procedure, but which were not a part of GAO's recommendations.

4. Policy. The following procedures are hereby formally adopted in the National Office and will be used as guidelines in determining "as effective as" procedures in the States:

a. The final decision will normally be made on an adequate variance application within 120 days of its receipt. In the National Office, this is broken down as follows:

Receipt to publication - 30 days Public Comment Period - 30 days

no comments received - 45 days comments received - 60 days

OSHA INSTRUCTION STD 6.1 OCTOBER 30, 1978

b. A variance application which does not state an alternative method of compliance will be denied a procedurally inadequate within 15 days of receipt. This time frame will also be used for procedural denials of temporary variances, such as a request for temporary variance from a standard already in effect, or one in which the steps to safeguard employees are not stated.

c. Letters denying or otherwise closing variance applications will be sent to applicants, and the appropriate Regional and Area Offices. In multi-state variance requests, a copy of the letter will go to the appropriate State Offices, i.e. States with approval plans that may be affected. If an association is involved, the letter will be sent to the association headquarters, with the requirement that it be forwarded to all affected employers. If there has been direct contact with employees or employee groups, a copy will be sent to those groups.

d. Letters denying otherwise closing variance applications will include a statement describing any potential hazard and referring the applicant to the OSHA Area Office for further general guidance. Specific advice to the applicant would have to come from private consultants or from consulting programs established under Sections 18(b) or 7(c)(1) of the Act.

e. All letters of denial or otherwise closing a formal application will contain a requirement that they be posted for the employees to read.

f. The Area Office will be asked to perform a compliance inspection within 30 days of denial of a variance request where no citation was previously involved. This inspection will involve only the areas concerned in the denial of variance. The usual citation procedures will be followed for any violations which are noted. The letter of denial to the applicant will state the Area Office will receive a copy of the letter and will perform such a limited inspection within 30 days.

Many variance requests denied involve hazards for which the employer has been cited and is under abatement. These would be handled under regular abatement procedures.

The Area Offices area informed of variances granted within their area of coverage. They will be asked to schedule routine follow-up inspections.

OSHA INSTRUCTION STD 6.1 OCTOBER 30, 1978

g. Variance inspection will be required when making decisions on adequate variance requests involving flammable and combustible liquids, toxic and carcinogenic substances, explosives, electrical equipment and others as deemed necessary. Variance inspections will also be required for temporary and experimental variances, for situations involving employee objection to the variance, or where first-hand examination is necessary to obtain further information.

h. The public notices and filed will contain the information on which a decision was based. This will include the results of the variance inspection, if one was held, or the reasons it was determined that a variance inspection was not necessary.

    i.   1.  An employee complaint concerning safety under a granted
             variance with the terms of the order will be handled by the
             Area Office under routine complaint procedures.

2. When an employee requests a hearing on the merits of a variance application, a variance inspection will normally be made within 15 days.

j. A variance inspection will be performed before a temporary variance is granted. There may be need for an additional variance inspection if the applicant states that it experiences problems in meeting scheduled deadlines. The Area Office will be informed of the expiration of a temporary variance and will be asked to perform a follow-up inspection.

The following are additional policy items which the States should consider in adopting "as effective as" procedures and which the Regions should be aware of in their morning activities:

a. Clarification of an issue through standards interpretation, etc., should be used whenever possible to avoid processing unnecessary variances. Use of this procedure should be noted on the State's quarterly statistical report.

b. The Federal variance inspection is a single purpose, pre-announced, non-compliance inspection. It is conducted by Regional technical support staff or Area Director at the request of the National Office, and at a time that is arranged with the applicant. The employee representative is invited to participate in the visit. The inspection is limited to

OSHA INSTRUCTION STD 6.1 OCTOBER 30, 1978

gathering information concerning the variance. No citations will be issued, but the employer, employees and Area Director will be informed if an imminent danger situation is found.

c. The State should have an established policy on previously granted single establishment Federal variances, e.g., automatic acceptance, acceptance on employer filing with the State, independent State action required.

d. The opportunity for consolidating a multi-establishment variance application through the Federal variance reciprocity procedure should be made known to interested parties in those States having standards identical to the Federal. Further, States should consider requiring employers to certify that a variance application has not been previously acted upon Federally. (This is to avoid the inadvertent State granting of a variance which has been denied Federally and the possibility of unnecessary concurrent Federal/State action on a variance request.)

Temporary variances are technically available only during that period between promulgation of a standard and its effective date for employers unable to come into compliance within that time. Therefore, States may not use the temporary variance procedure to achieve the same result as a Petition for Modification of Abatement (PMA). In general a PMA is preferable in those cases where there is an outstanding citation and the employer, due to the unavailability of materials, technical expertise, etc., cannot meet the original abatement date. A PMA application must specify the steps taken to guarantee worker safety in the same manner as is required in a temporary variance application, thereby providing the same degree of protection to employees.

f. Where a State standard is found to be less effective than a comparable Federal standard, States should review all variances that have been granted to that standard. This does not mean that States must revoke all such variances but that they should determine that the variances provide protection equivalent to that provided by the standard as revised to be "at least as effective". In most States the variances (permanent) could only be changed or revoked after being in effect for at least six months.

OSHA INSTRUCTION STD 6.1 OCTOBER 30, 1978

5. Action. Procedures consistent with the above should be adopted by the States within 90 days. Where regulatory amendments and/or compliance manual changes are appropriate, the Regional should work with the State to establish a reasonable timetable for submission of a State plan amendment. These guidelines should be used by the Regional Office in monitoring and evaluating State variance activity.

6. Filing. This directive is effective immediately and shall remain in effect until further notice.

Barry White Associate Assistant Secretary for Regional Programs

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