[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]
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