[Federal Register Volume 79, Number 245 (Monday, December 22, 2014)]
[Notices]
[Pages 76387-76391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29826]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
[Docket Nos. OSHA-2014-0020, 0017, 0010, 0008, 0006, 0003, 0002, OSHA-
2013-0014, 0001, OSHA-2012-0056, 0053, 0052, 0051, 0050, 0049, 0048,
0047, 0046, 0045, 0044, 0043, 0042, 0041, OSHA-2011-0093]
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 past. Because OSHA denied these applications, it did not publish
them in the Federal Register for public review. OSHA is making this
information available to the public to enhance
[[Page 76388]]
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: [email protected].
General and technical information: Contact Mr. Stefan Weisz, 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: [email protected].
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
(control no. 1218-0265), 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 to not 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
[[Page 76389]]
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 for regulatory action proposing use of alternate means for
protecting workers at least as effectively 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 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'' or ``definition'' 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.
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 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
five 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-
[[Page 76390]]
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\ 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. 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 1995-2010'' Web page: (http://www.osha.gov/dts/otpca/variances/denied_withdrawn95-10.html).
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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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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 decided to publish the dockets of the variance applications
that the Agency denied during FY 2010-2014 \8\ on the Federal
eRulemaking Portal and OSHA's ``Denied and Withdrawn Variance
Applications for 1995-2014 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 Date of
Docket ID Company name which variance denial or State(s) Reason denied or
requested withdrawal withdrawn
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OSHA-2014-0020............. Upland 1910.215(a)(2) 9/8/2014 MO.............. Denied_unresolve
Industries, and d citation.
Inc., dba 1910.215(a)(4).
Elegius Bronze.
OSHA-2014-0017............. Bennett 1926.1419(a)(2). 8/19/2014 OK.............. Denied_not as
Construction, protective as
Inc. standard and
exemption
requested.
OSHA-2012-0049............. Green Barn Farms 1910.142(a)(2).. 7/24/14 WI.............. Withdrawn_varian
ce not
necessary.
OSHA-2014-0008............. ITW Food 1910.23(c)(1) 6/11/2014 AK, AZ, CA, CT, Denied_not as
Equipment Group and HI, IA, IL, IN, protective as
LLC; dba Hobart 1926.501(b)(1). KY, MD, MI, MN, standard and
Service. NC, NJ, NM, NV, exemption
NY, OR, PR, SC, requested.
TN, UT, VA, VI,
VT, WA, WY.
OSHA-2014-0006............. Ned Stevens..... 1910.23(c)(1)... 5/6/2014 CT, IL, MA, MD, Denied_unresolve
NC, NJ, NY, PA, d citation.
SC, TX, VA.
OSHA-2014-0010............. Southland 1926.602(a)(9)(i 4/16/2014 HI.............. Withdrawn_site
Contracting. i). located solely
in State Plan
state.
OSHA-2014-0003............. Johnstown Wire 1910.1025(d)(6)( 3/26/2014 NY.............. Denied_exemption
Technologies. iii). requested.
OSHA-2014-0002............. Puerto Rico 1919.410(c), 3/27/2014 PR.............. Denied_exemption
Harbor Diving 1910.424(c)(1), requested.
Services. &
1910.424(c)(2).
OSHA-2013-0001............. Tonawanda Coke 1910.1029(f)(3)( 8/22/2013 NY.............. Denied_not as
Corporation. iii)(a). protective as
standard.
OSHA-2013-0014............. McLean 1926.1041(e)(10) 6/4/2013 DC, DE, MD, NC, Denied_not as
Contracting Co. SC, VA. protective as
standard.
OSHA-2012-0056............. Sunrise Senior 1910.151(c)..... 4/10/2013 CO, CT, DC, DE, Denied_standard
Living, Inc. FL, GA, IL, KS, or
LA, MA, ME, MO, interpretation
NE, NJ, NY, OH, already exists.
PA, TX.
OSHA-2012-0053............. Key Energy 1910.23(c)(1)... 1/4/2013 AK, AZ, CA, KY, Denied_not as
Services. MD, MI, NM, NC, protective as
TN, UT, VA, WY. standard.
[[Page 76391]]
OSHA-2012-0052............. U.S. Postal 1910.333(a)(1) & 12/19/2012 All Fed OSHA & Denied_not as
Service. 1910.333(a)(2). State Plan protective as
states. standard.
OSHA-2012-0041............. The Scotts 1910.178(n)(4).. 9/12/2012 AL, AZ, CA, CO, Denied_standard
Company, LLC. CN, FL, GA, IA, or
IL, IN, KY, LA, interpretation
MI, MS, MO, OH, already exists.
PA, SC, SD, TX,
VA, WI.
OSHA-2012-0042............. T & T Fertilizer 1910.27(d)(2)... 7/13/2012 IN.............. Denied_site
located solely
in State Plan
state.
OSHA-2012-0043............. U.S. Pipe and 1910.23(c)(1) & 2/16/2012 AL.............. Denied_standard
Foundry Company. 1920.23(e)(1). or
interpretation
already exists.
OSHA-2012-0044............. GTECH Corp...... 1926.501(b)(1).. 1/3/2012 AZ, CA, FL, GA, Denied_not as
KS, KY, MI, MN, protective as
MO, NE, NJ, NY, standard.
NC, OR, RI, SD,
TX, VA, WA, WV,
WI.
OSHA-2012-0045............. Timothy Raymond. 1026.1400(a) & 1/3/2012 All Fed OSHA & Denied_applicati
(b); State Plan on
1926.1431(a) & states. inappropriately
(b); addresses
1926.1431(h)(1) request for
& (h)(2). product design
approval.
OSHA-2012-0046............. Cedar Fair, LP.. 1910.28, 12/2/2011 CA, MI, MN, MO, Denied_applicati
1910.29, & NC, OH, PA, VA. on
1910.32. inappropriately
addresses
proposed
standard.
OSHA-2012-0047............. NSS 1926.602........ 10/27/2011 MI.............. Denied_site
Construction, located solely
Inc. in State Plan
state.
OSHA-2012-0048............. National Chimney 1926.452(o) & 9/29/2011 All Fed OSHA & Denied_standard
and Stack, Inc. 1926.552(c). State Plan or
states. interpretation
already exists.
OSHA-2012-0050............. Industrial 1926.452(o) & 8/4/2011 All Fed OSHA & Denied_standard
Access, Inc. 1926.552(c). State Plan or
states. interpretation
already exists.
OSHA-2011-0093............. Eagle Worker's 1904.3.......... 4/28/2011 PA.............. Denied_not as
Compensation protective as
Trust. standard.
OSHA-2012-0051............. SL Chase Welding 1926.300(a)..... 12/8/2010 MA, NH, VT...... Denied_not as
and protective as
Fabricating, standard.
Inc.
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IV. 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 December 15, 2014.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2014-29826 Filed 12-19-14; 8:45 am]
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