81 FR 12969 - Authorization To Open Dockets of Denied Variance Applications for Public Access
DEPARTMENT OF LABOR
Occupational Safety and Health Administration Federal Register Volume 81, Issue 48 (March 11, 2016)
Occupational Safety and Health Administration
Federal Register Volume 81, Issue 48 (March 11, 2016)
| Page Range | 12969-12972 | |
| FR Document | 2016-05488 |
[Federal Register Volume 81, Number 48 (Friday, March 11, 2016)] [Notices] [Pages 12969-12972] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-05488] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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: [email protected]. 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: [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)). --------------------------------------------------------------------------- \1\ See Section 6(b)(6)(A) of the OSH Act (29 U.S.C. 655) and 29 CFR 1905.10. --------------------------------------------------------------------------- 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)). --------------------------------------------------------------------------- \2\ See Section 6(b)(6)(C) of the OSH Act (29 U.S.C. 655). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \3\ See Section 6(d) of the OSH Act (29 U.S.C. 655) and 29 CFR 1905.11. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \4\ See Section 16 of the OSH Act (29 U.S.C. 665) and 29 CFR 1905.12. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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 @ http://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: (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. [[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 (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: --------------------------------------------------------------------------- \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
![Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Notices 12969
must submit them to the OSHA Docket DEPARTMENT OF LABOR Under several provisions of the OSH
Office (see the section of this notice Act, employers may apply for four
titled ADDRESSES). The additional Occupational Safety and Health different types of variances from the
materials must clearly identify your Administration requirements of OSHA standards.
electronic comments by your name, [Docket Nos. OSHA–2014–0025, 0026, Employers submit variance applications
date, and the docket number so the OSHA–2015–0004, 0007, 0011, 0016, 0023] voluntarily to OSHA, and the
Agency can attach them to your applications specify alternative means
comments. Authorization To Open Dockets of of complying with the requirements of
Denied Variance Applications for OSHA standards. The four types of
Due to security procedures, the use of Public Access variances are temporary, experimental,
regular mail may cause a significant permanent, and national-defense
delay in the receipt of comments. For AGENCY: Occupational Safety and Health variances. OSHA promulgated rules
information about security procedures Administration (OSHA), Labor. implementing these statutory provisions
concerning the delivery of materials by ACTION: Notice. in 29 CFR part 1905 (‘‘Rules of Practice
hand, express delivery, messenger, or for Variances, Limitations, Variations,
SUMMARY: In this notice, OSHA
courier service, please contact the Tolerances, and Exemptions under the
announces its intent to update the
OSHA Docket Office at (202) 693–2350, William-Steiger Occuptional Safety and
publication of the dockets of variance
(TTY (877) 889–5627). Health Act of 1970’’). The following
applications that it denied in the period
Comments and submissions are paragraphs further describe each of
from 2014 to 2015. Previously OSHA
these four types of variances.
posted without change at http:// published a Federal Register notice Temporary variance.1 This variance
www.regulations.gov. Therefore, OSHA announcing the denied variance delays the date on which an employer
cautions commenters about submitting application dockets for the 2010 to 2014 must comply with requirements of a
personal information such as social (79 FR 76387) period. OSHA is making newly issued OSHA standard. The
security numbers and dates of birth. this information available to the public employer must submit the variance
Although all submissions are listed in to enhance transparency concerning the application to OSHA after OSHA issues
the http://www.regulations.gov index, variance process, to assist the public in the standard, but prior to the effective
some information (e.g., copyrighted understanding the variance process, and date of the standard. In the variance
material) is not publicly available to to reduce errors in applying for future application, the employer must
read or download from this Web site. variances. demonstrate an inability to comply with
All submissions, including copyrighted FOR FURTHER INFORMATION CONTACT: the standard by its effective date
material, are available for inspection Information regarding this notice is ‘‘because of unavailability of
and copying at the OSHA Docket Office. available from the following sources: professional or technical personnel or of
Press inquiries: Contact Mr. Frank materials and equipment needed to
Information on using the http://
Meilinger, Director, OSHA Office of come into compliance with the standard
www.regulations.gov Web site to submit
Communications, U.S. Department of or because necessary construction or
comments and access the docket is
Labor, 200 Constitution Avenue NW., alteration of facilities cannot be
available at the Web site’s ‘‘User Tips’’ Room N–3647, Washington, DC 20210;
link. Contact the OSHA Docket Office completed by the effective date.’’
telephone: (202) 693–1999; email: Employers also must establish that they
for information about materials not Meilinger.francis2@dol.gov. are ‘‘taking all available steps to
available from the Web site, and for General and technical information: safeguard [their] employees against the
assistance in using the Internet to locate Contact Mr. Kevin Robinson, Director, hazards covered by the standard,’’ and
docket submissions. Office of Technical Programs and that they have ‘‘an effective program for
Coordination Activities, Directorate of coming into compliance with the
V. Authority and Signature
Technical Support and Emergency standard as quickly as practicable.’’ (29
David Michaels, Ph.D., MPH, Management, Occupational Safety and U.S.C. 655(b)(6)(A)).
Assistant Secretary of Labor for Health Administration, U.S. Department Experimental variance.2 OSHA may
Occupational Safety and Health, of Labor, 200 Constitution Avenue NW., grant this variance as an alternative to
directed the preparation of this notice. Room N–3655, Washington, DC 20210; complying with the requirements of a
The authority for this notice is the phone: (202) 693–2110 or email: standard whenever it determines that
Paperwork Reduction Act of 1995 (44 robinson.kevin@dol.gov. the variance ‘‘is necessary to permit an
U.S.C. 3506 et seq.) and Secretary of SUPPLEMENTARY INFORMATION: employer to participate in an
Labor’s Order No. 1–2012 (77 FR 3912). experiment . . . designed to demonstrate
I. Background or validate new and improved
Signed at Washington, DC, on March 7, The principal objective of the techniques to protect the health or
2016. Occupational Safety and Health Act of safety of employees.’’ (29 U.S.C.
David Michaels, 1970 (‘‘the OSH Act’’) is ‘‘to assure so 655(b)(6)(C)).
Assistant Secretary of Labor for Occupational far as possible every working man and Permanent variance.3 This variance
Safety and Health. woman in the Nation safe and healthful authorizes employers (or groups of
[FR Doc. 2016–05487 Filed 3–10–16; 8:45 am] working conditions and to preserve our employers) to use alternative means of
human resources’’ (29 U.S.C. 651 et complying with the requirements of
asabaliauskas on DSK3SPTVN1PROD with NOTICES
BILLING CODE 4510–26–P
seq.). In fulfilling this objective, the OSHA standards when the employers
OSH Act authorizes the implementation demonstrate, with a preponderance of
of ‘‘such rules and regulations as [the
Assistant Secretary of Labor for 1 See Section 6(b)(6)(A) of the OSH Act (29 U.S.C.
Occupational Safety and Health] may 655) and 29 CFR 1905.10.
2 See Section 6(b)(6)(C) of the OSH Act (29 U.S.C.
deem necessary to carry out [his/her] 655).
responsibilities under this Act’’ (29 3 See Section 6(d) of the OSH Act (29 U.S.C. 655)
U.S.C. 657(g)(2)). and 29 CFR 1905.11.
VerDate Sep<11>2014 17:56 Mar 10, 2016 Jkt 238001 PO 00000 Frm 00112 Fmt 4703 Sfmt 4703 E:\FR\FM\11MRN1.SGM 11MRN1](https://thefederalregister.org/doc/81_FR_13017/page/1.svg)
![12970 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Notices
evidence, that the proposed alternative makes the case docket public and means of compliance protects workers
protects employees at least as effectively available online at the Federal at least as effectively as the protection
as the requirements of the standards. eRulemaking Portal (http:// afforded by the standard from which the
National defense variance.4 Under www.regulations.gov). applicant is seeking the variance (29
this variance, OSHA, ‘‘may provide Following publication of the CFR 1905.11). Therefore, in order to
such reasonable limitations and may preliminary FRN, interested parties may avoid this type of error, a variance
make such rules and regulations submit their comments and attachments application should contain proposed
allowing reasonable variations, electronically to the Federal alternate safety measures that are at
tolerances, or exceptions to and from’’ eRulemaking Portal. OSHA monitors least as effective as the protection
the requirements of its standards that it public comments received (if any), and afforded by the applicable standard.
‘‘find[s] are necessary and proper to at the expiration of the comment period Denied—standard or interpretation
avoid serious impairment of the reviews and analyzes them. Based on already exists. The applicant proposes
national defense’’ (29 U.S.C. 665). Such the review results, OSHA develops and use of alternate means that OSHA
variances can be in effect no longer than publishes the final FRN granting or previously determined acceptable for
six months without notifying the denying the variance. use by issuing a letter of interpretation
affected employees and affording them If OSHA determines not to move (LOI). Since use of the proposed
an opportunity for a hearing. forward with the grant of a variance, it alternate was allowed prior to the filing
Additionally, OSHA developed does not publish the variance docket. A of the variance application, the
optional stardardized variance variance application may be denied for application is unnecessary. The
application forms, and obtained the a variety of reasons upon completion of applicant may use the means of
requried Office of Management and the technical review. Often these compliance in the manner determined
Budget (OMB) approval for the reasons stem from errors employers acceptable and described by the LOI.
information collection requirement commit in completing their Denied—site located solely in State-
(OMB control no. 1218–0265/Expires 6/ applications. Reviewing the variance Plan state.5 When obtaining a variance
30/2018), in order to assist employers in application forms’ completion for establishment(s) located solely in
meeting the paperwork requirements instructions, the application checklists, states that operate their own OSHA-
contained in these regulations. Further, and previously denied variance approved occupational safety and health
in order to facilitate and simplify the applications prior to completing a plans, employer(s) must follow the
completion of the complex variance variance application will assist variance-application procedures
applications and reduce the information applicants in determining whether their specified by the State Plan(s) covering
collection burden on applicants, OSHA applications are complete and states in which they have
made the variance application forms appropriate, as well as to avoid common establishment(s) named in the variance
and accompanying completion errors. The following are examples of application(s) (29 CFR 1952). Therefore,
instructions, as well as variance common errors that lead to the denial of in order to avoid this type of error, a
application checklists, accessible from applications: variance application for
its ‘‘How to Apply for a Variance’’ Web Denied—unresolved citation. An establishment(s) located solely in State
page (http://www.osha.gov/dts/otpca/ employer cannot use a variance Plan states should be filed in the state(s)
variances/index.html). application to avoid or resolve an where the establishments are located.
existing citation while contesting the Denied—application missing side-by-
II. Denied Variance Applications citation. If OSHA has issued a citation side comparison. When obtaining a
Generally, when receiving a variance on the standard (or provision of the multi-state variance (involving at least
application, OSHA conducts an standard) for which an employer is one location in a state under Federal
administrative and technical review, seeking a variance, OSHA may deny the OSHA authority and one location in a
which includes verifying an applicant application or place it on hold until the state under State Plan authority) and the
completed the application fully and parties resolve the citation (29 CFR application does not contain side-by-
included required information and 1905.5). Therefore, in order to avoid this side comparison of federal and state
evaluating the effectiveness of the type of error, a variance application plan standard(s), the application will be
alternate safety measures proposed by should not contain a request for denied. Therefore, in order to avoid this
the applicant. Part of OSHA’s resolving a contested citation. type of error, the application for a multi-
administrative variance application Denied—exemption requested. An
state variance should contain a side-by-
evaluation is to establish a docket for application for a variance is a request
side comparison of the federal standard
each case. OSHA then places the proposing use of alternate means for
from which the employer is requesting
variance application and other related protecting workers that are at least as
a variance with the corresponding state
materials submitted by the applicant in effective as the standards from which
standard. The corresponding state
the docket without revision. Initially, the applicant is seeking the variance.
standard must be essentially identical in
these materials are not made public. Therefore, in order to avoid this type of
substance to the federal standard.
Upon completion of the technical error, a variance application should not Denied—application inappropriately
review, if OSHA determines to move contain a request for an outright requests product or product design
forward with the grant of a variance, it exemption or waiver that permits the approval. The variable working
develops and publishes a preliminary applicant to avoid complying with the conditions at jobsites and the possible
requirements of an applicable standard.
asabaliauskas on DSK3SPTVN1PROD with NOTICES
Federal Register notice (FRN) alteration or misapplication of an
announcing the variance application, Only national-defense variances may otherwise safe piece of equipment could
grant of an interim order (when such provide outright exemptions from easily create hazardous conditions
was requested by the applicant), and OSHA standards (29 CFR 1905.12). beyond the control of the equipment
request for public comment. When the Denied—not as protective as
manufacturer. Therefore, it is OSHA’s
preliminary FRN is published, OSHA standard. The technical review of the
variance application found that it failed 5 Section 18 of the OSH Act of 1970 encourages
4 SeeSection 16 of the OSH Act (29 U.S.C. 665) to demonstrate by a preponderance of States to develop and operate their own job safety
and 29 CFR 1905.12. evidence that the proposed alternate and health programs.
VerDate Sep<11>2014 17:56 Mar 10, 2016 Jkt 238001 PO 00000 Frm 00113 Fmt 4703 Sfmt 4703 E:\FR\FM\11MRN1.SGM 11MRN1](https://thefederalregister.org/doc/81_FR_13017/page/2.svg)
![12972 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Notices
III. Granting Public Access to Dockets from 2010 through 2014 (79 FR 76387). This action was consistent with the
of Denied Variance Applications The dockets for these denied or policy established by the Open
withdrawn variance applications are Government Directive, M–10–06, issued
OSHA has denied a large number of accessible online at the Federal
variance applications since its inception by the Office of Management and
eRulemaking Portal (http:// Budget on December 8, 2009 (http://
in the early 1970s. As previously www.regulations.gov), as well as on
indicated in this notice, because OSHA www.whitehouse.gov/sites/default/files/
OSHA’s ‘‘Denied and Withdrawn omb/assets/memoranda_2010/m10–
denied these applications, initially they Variance Applications for 1995–2014’’
were not published in the Federal 06.pdf).
Web page: (http://www.osha.gov/dts/
Register for public review.7 otpca/variances/denied_withdrawn95- OSHA published the dockets of the
However, in 2010, OSHA made public 10.html). variance applications that the Agency
a sizable number of illustrative variance OSHA made this information denied during 2014–2015 8 on the
applications (approximately 200) that it available to the public to enhance Federal eRulemaking Portal and OSHA’s
denied during the period from 1995 transparency concerning the variance ‘‘Denied and Withdrawn Variance
through 2010. process, to assist the public in Applications for 1995–2015’’ Web page.
Further, on December 22, 2014, OSHA understanding the variance process, and These denied variance application
published an FRN announcing the to reduce errors in applying for future dockets are presented in the table
dockets of the variances that it denied variances. below:
Standard from which Date of denial Reason denied or
Docket ID Company name variance State(s)
or withdrawal withdrawn
requested
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 Sec- 10/5/2015 MO ................. Denied—No variances
tion 5(a)(1) of the Act. from the general-duty
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 Ma- 1910.1200; Appendix C, 04/14/2015 PA, NJ, KY .... Denied—Not as protective
terials, Inc. (C.2.3.1). as standard.
OSHA–2015–0004 ..... Devin Kieschnick (DK) 1910.142(b)(2) .................. 03/10/2015 TX .................. Denied—Not as protective
Farms. as standard and exemp-
tion 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 protective
(UPRR). as standard and exemp-
tion requested.
Authority and Signature OFFICE OF MANAGEMENT AND https://SourceCode.cio.gov or to
BUDGET SourceCode@omb.eop.gov.
David Michaels, Ph.D., MPH, FOR FURTHER INFORMATION CONTACT: Mr.
Assistant Secretary of Labor for Request for Comments on Federal Alvand A. Salehi, OMB, at
Occupational Safety and Health, 200 Source Code Policy SourceCode@omb.eop.gov or
Constitution Avenue NW., Washington, AAbdolsalehi@omb.eop.gov.
DC 20210, authorized the preparation of AGENCY: Office of Management and SUPPLEMENTARY INFORMATION: The
this notice. Accordingly, the Agency is Budget. Administration committed to adopting a
issuing this notice pursuant to 29 U.S.C. ACTION: Notice of public comment Government-wide Open Source
655, Secretary of Labor’s Order No. 1– period. Software policy in its Second Open
2012 (77 FR 3912, Jan. 25, 2012), and 29 Government National Action Plan that
CFR part 1905. SUMMARY: The Office of Management ‘‘will support improved access to
Signed at Washington, DC, on March 7, and Budget (OMB) is seeking public custom software code developed for the
2016. comment on a draft memorandum titled, Federal Government,’’ emphasizing that
David Michaels, ‘‘Federal Source Code Policy— using and contributing back to Open
Achieving Efficiency, Transparency, Source Software can fuel innovation,
Assistant Secretary of Labor for Occupational
and Innovation through Reusable and lower costs, and benefit the public. In
Safety and Health.
Open Source Software.’’ support of that commitment, today the
[FR Doc. 2016–05488 Filed 3–10–16; 8:45 am]
White House Office of Management and
DATES: The 30-day public comment
BILLING CODE 4510–26–P Budget (OMB) is releasing a draft policy
asabaliauskas on DSK3SPTVN1PROD with NOTICES
period on the draft memorandum closes
to improve the way custom-developed
on April 11, 2016.
Government code is acquired and
ADDRESSES: Interested parties should distributed moving forward. This policy
provide comments and feedback to requires that, among other things: (1)
7 Sections 6(b), 6(d), and 16 of the OSH Act and and grants by publication in the Federal Register, 8 Completed between the governmental fiscal
29 CFR 1905 set out the laws and regulations no such provisions are in place for denied variance years of October 1, 2010 and September 30, 2014.
applicable to Variances. Whereas, these provisions applications.
require OSHA to announce variance applications
VerDate Sep<11>2014 17:56 Mar 10, 2016 Jkt 238001 PO 00000 Frm 00115 Fmt 4703 Sfmt 4703 E:\FR\FM\11MRN1.SGM 11MRN1](https://thefederalregister.org/doc/81_FR_13017/page/4.svg)
Document Created: 2016-03-11 01:50:46
Document Modified: 2016-03-11 01:50:46
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice. | |
| Contact | Information regarding this notice is available from the following sources: | |
| FR Citation | 81 FR 12969 |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR