Authorization To Open Dockets of Denied Variance Applications for Public Access, 12969-12972 [2016-05488]

Download as PDF Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Notices must submit them to the OSHA Docket Office (see the section of this notice titled ADDRESSES). The additional materials must clearly identify your electronic comments by your name, date, and the docket number so the Agency can attach them to your comments. Due to security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693–2350, (TTY (877) 889–5627). Comments and submissions are posted without change at https:// www.regulations.gov. Therefore, OSHA cautions commenters about submitting personal information such as social security numbers and dates of birth. Although all submissions are listed in the https://www.regulations.gov index, some information (e.g., copyrighted material) is not publicly available to read or download from this Web site. All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. Information on using the https:// www.regulations.gov Web site to submit comments and access the docket is available at the Web site’s ‘‘User Tips’’ link. Contact the OSHA Docket Office for information about materials not available from the Web site, and for assistance in using the Internet to locate docket submissions. V. Authority and Signature David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506 et seq.) and Secretary of Labor’s Order No. 1–2012 (77 FR 3912). asabaliauskas on DSK3SPTVN1PROD with NOTICES Signed at Washington, DC, on March 7, 2016. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health. [FR Doc. 2016–05487 Filed 3–10–16; 8:45 am] BILLING CODE 4510–26–P VerDate Sep<11>2014 17:56 Mar 10, 2016 Jkt 238001 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 Occupational Safety and Health Administration (OSHA), Labor. ACTION: Notice. AGENCY: 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: SUMMARY: 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)). PO 00000 Frm 00112 Fmt 4703 Sfmt 4703 12969 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)). 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)). 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 1 See Section 6(b)(6)(A) of the OSH Act (29 U.S.C. 655) and 29 CFR 1905.10. 2 See Section 6(b)(6)(C) of the OSH Act (29 U.S.C. 655). 3 See Section 6(d) of the OSH Act (29 U.S.C. 655) and 29 CFR 1905.11. E:\FR\FM\11MRN1.SGM 11MRN1 12970 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Notices asabaliauskas on DSK3SPTVN1PROD with NOTICES evidence, that the proposed alternative protects employees at least as effectively as the requirements of the standards. 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. 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 (https://www.osha.gov/dts/otpca/ variances/). 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 4 See Section 16 of the OSH Act (29 U.S.C. 665) and 29 CFR 1905.12. VerDate Sep<11>2014 17:56 Mar 10, 2016 Jkt 238001 makes the case docket public and available online at the Federal eRulemaking Portal (https:// 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 PO 00000 Frm 00113 Fmt 4703 Sfmt 4703 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 StatePlan state.5 When obtaining a variance for establishment(s) located solely in states that operate their own OSHAapproved 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. Denied—application missing side-byside 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-byside 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 multistate variance should contain a side-byside 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 5 Section 18 of the OSH Act of 1970 encourages States to develop and operate their own job safety and health programs. E:\FR\FM\11MRN1.SGM 11MRN1 asabaliauskas on DSK3SPTVN1PROD with NOTICES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Notices 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. 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, 6 See LOI dated December 30, 1983 @ https:// www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_ id=19170. VerDate Sep<11>2014 17:56 Mar 10, 2016 Jkt 238001 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 PO 00000 Frm 00114 Fmt 4703 Sfmt 4703 12971 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: (https://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 varianceapplication 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. E:\FR\FM\11MRN1.SGM 11MRN1 12972 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Notices 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 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 (https:// www.regulations.gov), as well as on OSHA’s ‘‘Denied and Withdrawn Variance Applications for 1995–2014’’ Web page: (https://www.osha.gov/dts/ otpca/variances/denied_withdrawn9510.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. Docket ID Company name Standard from which variance requested OSHA–2015–0016 ..... J.W. Fowler, Co ................ 1926.803 ........................... OSHA–2015–0023 ..... Wahlco—D.W. Tool .......... General-duty clause Section 5(a)(1) of the Act. OSHA–2015–0011 ..... Rosenwach Tank Co. LLC OSHA–2015–0007 ..... 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 (https:// 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: State(s) Reason denied or withdrawn 12/4/2015 ND .................. 10/5/2015 MO ................. 1926.501(b)(1) .................. 06/04/2015 NY .................. Avantor Performance Materials, Inc. Devin Kieschnick (DK) Farms. 1910.1200; Appendix C, (C.2.3.1). 1910.142(b)(2) .................. 04/14/2015 PA, NJ, KY .... 03/10/2015 TX .................. OSHA–2014–0026 ..... Transfield Services ........... 1910.134 ........................... 12/15/2014 TX, CA ........... OSHA–2014–0025 ..... Union Pacific Railroad (UPRR). 1910.110(b)(6)(ii) .............. 10/8/2014 IL .................... Withdrawn—variance not necessary. Denied—No variances from the general-duty clause. Denied—Not as protective as standard. Denied—Not as protective as standard. Denied—Not as protective as standard and exemption requested. Withdrawn—variance not necessary. Denied—not as protective as standard and exemption requested. OSHA–2015–0004 ..... 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. asabaliauskas on DSK3SPTVN1PROD with NOTICES [FR Doc. 2016–05488 Filed 3–10–16; 8:45 am] Date of denial or withdrawal OFFICE OF MANAGEMENT AND BUDGET Request for Comments on Federal Source Code Policy AGENCY: Office of Management and Budget. ACTION: Notice of public comment period. The Office of Management and Budget (OMB) is seeking public comment on a draft memorandum titled, ‘‘Federal Source Code Policy— Achieving Efficiency, Transparency, and Innovation through Reusable and Open Source Software.’’ SUMMARY: The 30-day public comment period on the draft memorandum closes on April 11, 2016. DATES: BILLING CODE 4510–26–P Interested parties should provide comments and feedback to ADDRESSES: 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 VerDate Sep<11>2014 17:56 Mar 10, 2016 Jkt 238001 and grants by publication in the Federal Register, no such provisions are in place for denied variance applications. PO 00000 Frm 00115 Fmt 4703 Sfmt 4703 https://SourceCode.cio.gov or to SourceCode@omb.eop.gov. Mr. Alvand A. Salehi, OMB, at SourceCode@omb.eop.gov or AAbdolsalehi@omb.eop.gov. SUPPLEMENTARY INFORMATION: The Administration committed to adopting a Government-wide Open Source Software policy in its Second Open Government National Action Plan that ‘‘will support improved access to custom software code developed for the Federal Government,’’ emphasizing that using and contributing back to Open Source Software can fuel innovation, lower costs, and benefit the public. In support of that commitment, today the White House Office of Management and Budget (OMB) is releasing a draft policy to improve the way custom-developed Government code is acquired and distributed moving forward. This policy requires that, among other things: (1) FOR FURTHER INFORMATION CONTACT: 8 Completed between the governmental fiscal years of October 1, 2010 and September 30, 2014. E:\FR\FM\11MRN1.SGM 11MRN1

Agencies

[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

[[Page 12970]]

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 (https://www.osha.gov/dts/otpca/variances/).

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 (https://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.
---------------------------------------------------------------------------

\5\ Section 18 of the OSH Act of 1970 encourages States to
develop and operate their own job safety and health programs.
---------------------------------------------------------------------------

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

[[Page 12971]]

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.
---------------------------------------------------------------------------

\6\ See LOI dated December 30, 1983 @ https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=19170.
---------------------------------------------------------------------------

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: (https://www.osha.gov/dcsp/osp/).
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.

[[Page 12972]]

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\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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 (https://www.regulations.gov), as well as on OSHA's ``Denied and Withdrawn
Variance Applications for 1995-2014'' Web page: (https://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 (https://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:
---------------------------------------------------------------------------

\8\ Completed between the governmental fiscal years of October
1, 2010 and September 30, 2014.

--------------------------------------------------------------------------------------------------------------------------------------------------------
Standard from which Date of denial Reason denied or
Docket ID Company name variance requested or withdrawal State(s) withdrawn
--------------------------------------------------------------------------------------------------------------------------------------------------------
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.
--------------------------------------------------------------------------------------------------------------------------------------------------------

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

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