Document Lgr41MG3DxyzZeOwKEZYnBj87

SUBPART A--GENERAL REGULATIONS AND PROCEDURES 1905.1--PURPOSE AND SCOPE (o) This part contains rules of practice for ad ministrative proceedings (1) to grant vari ances and other relief under sections 6(b) (6) (A) and 6(d) of the Williams-Steiger Oc cupational Safety and Health Act of 1970, and (2) to provide limitations, variations, toler ances, and exemptions under section 16 of the Act. (b) These rules shall be construed to secure a prompt and just conclusion of proceedings sub ject thereto. (<) The rules of practice in this part do not ap ply to the granting of variances under section 6(b)(6)(C). Whenever appropriate, the pro cedure for granting such a variance shall be published in the Fe d er a l Re g is t e r . 1905.2--DEFINITIONS As used in this part, unless the context clearly requires otherwise-- (a) "Act" means the Williams-Steiger Occupa tional Safety and Health Act of 1970. (b) "Secretary" means the Secretary of Labor. (c) "Assistant Secretary" means the Assistant Secretary of Labor for Occupational Safety and Health. (d) "Person" means an individual, partnership, association, corporation, business trust, legal representative, an organized group of individ uals, or an agency, authority, or instrumen tality of the United States or of a State. i () "Party" means a person admitted to parti cipate in a hearing conducted in accordance with Subpart C of this part An applicant for relief and any affected employee shall be en titled to be named parties. The Department of Labor, represented by the Office of the Solicitor, shall be deemed to be a party without the ne cessity of being named. (f) "Affected employee" means an employee who would be affected by the grant or denial of a variance, limitation, variation, tolerance, or exemption, or any one of his authorized rep resentatives, such as his collective bargaining agent. 1905.3--PETITIONS FOR AMENDMENTS TO THIS PART Any person-may at any time petition the As sistant Secretary in writing to revise, amend, or revoke any provisions of this part. The peti tion should set forth either the terms or the substance of the rule desired, with a concise statement of the reasons therefor and the ef fects thereof. 65 IttSJ CYWI 3-001054 N14520 1905.4 REGULATIONS a n d PROCEDURES OCCUPATIONAL SAFETY AND HEALTH 1905.4--AMENDMENTS TO THIS PART The Assistant Secretary may at any time part, on his own motion or upon the written revise, amend, or revoke any provisions of this petition of any person. 1905.5--EFFECT OF VARIANCES All variances granted pursuant to this part shall have only future effect. In his discretion, the Assistant Secretary may decline to entertain an application for a variance on a subject or issue concerning which a citation has been issued to the employer involved and a proceeding on the cita tion or a related issue concerning a proposed pen alty or period of abatement is pending before the Occupational Safety and Health Review Commis sion or appropriate State review authority until the completion of such proceeding. {40 F.R. 25449,'June 16, 1975.} 1905.6--PUBLIC NOTICE OF A GRANTED VARIANCE, fLIMITATION, VARIATION, TOLERANCE, OR EXEMPTION Every final action granting a variance, limitation, variation, tolerance, or exemption under this part shall be published in the Fe d er a l Reg is t er . Every such final action shall specify the alternative to the standard involved which the particular variance permits. 1905.7--FORM OF DOCUMENTS; SUBSCRIPTION; COPIES (a) No particular form is prescribed for appli cations and other papers which may be filed in proceedings under this part. However, any applications and other papers shall be clearly legible. An original and six copies of any ap plication or other papers shall be filed. The original shall be typewritten. Clear carbon copies, or printed or processed copies are ac ceptable copies. (b) Each application or other paper which is filed in proceedings under this part shall be subscribed by the person filing the same or by his attorney or other authorized representative. 4 1905.7(b) & 66 CYWI 3-001055 OCCUPATIONAL SAFETY AND HEALTH __ 19OS.I0U) REGULATIONS AND PROCEDURES SUBPART B--APPLICATIONS FOR VARIANCES, LIMITATIONS, VARIATIONS TOLERANCES, EXEMPTIONS AND OTHER RELIEF 1905.10--VARIANCES AND OTHER RELIEF UNDER SECTION 6(b)(6)(A) (a) Application for variance. come into compliance with the standard; Any employer, or class of employers, desir ing a variance from a standard, or portion thereof, authorized by section 6(b) (6) (A) of the Act may file a written application contain ing the information specified in paragraph (b> of this section with the Assistant Secretary for Occupational Safety and Health, U.S. De partment of Labor, Washington, D.C. 20210. (b) Contents. (7) A statement of the facts the applicant would show to establish that (i) The applicant is unable to comply with a 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 com pleted by the effective date; \ c An application filed pursuant to paragraph (a) of this section shall include: (1) The name and address of the applicant; GO He is taking all available steps to safe, guard his employees against the hazard^ covered by the standard; and (2) The address of the place or places of em ployment involved; (3) A specification of the standard or portion thereof from which the applicant seeks a variance; (4) A representation by the applicant, sup ported by representations from qualified persons having first-hand knowledge of the facts represented, that he is unable to comply with the standard or portion thereof by its effective date and a detailed statement of the reasons therefor; (5) A statement of the steps the applicant has taken and, will take, with specific dates where appropriate, to protect employees against the hazard covered by the standard; (6) A statement of when the applicant ex pects to be able to comply with the standard and of what steps he has taken and will take, with specific dates where appropriate, to Gii) He has an effective program for com ing into compliance with the standard as quickly as practicable; (8) Any request for a hearing, as provided in this part; (9) A statement that the applicant has in formed his affected employees of the applica tion by giving a copy thereof to their author ized representative, posting a statement, giving a summary of the application and specifying where a copy may be examined, at the place or places where notices to em ployees are normally posted, and by other appropriate means; and (10) A description of how affected employees have been informed of the application and of their right to petition the Assistant Secre tary for a hearing. (11) Where the requested variance would be applicable to employment or places of employ ment in more than one State, including at least 67 1905.10(bXll) CYWI 3-001056 lHtS.ICKbXin REGULATIONS AND PROCEDURES one State with a State plan approved under section 18 of the Act. and involves a standard, or portion thereof, identical to the State stand ard effective under such plan: (!) A side-by-side comparison of the Federal standard, or portion thereof, involved with the State standard, or portion thereof, iden tical in substance and requirements; (ii) A certification that the employer or employers have not filed for such variance on the same material facts for the same employment or place of employment with any State authority having jurisdiction under an approval plan over any employment or place of employment covered in the application; and (m) A statement as to whether, with an iden tification of, any citation for violations of the State standard, or portion thereof, involved have been issued to the employer or employers by any of the State authorities en forcing the standard under a plan, and are pending. [40 F.R. 25449, June 16, 1975.] OCCUPATIONAL SAFETY AND HEALTH (c) interim order. c (1) Application. An application may also be made for an interim order to be effective until a decision is rendered on the applica tion for the variance filed previously or con currently. An application for an interim order may include statements of fact and arguments as to why the order should be granted. The Assistant Secretary may rule ex parte upon the application. (2) Notice of dental of application. If an appli cation filed pursuant to subparagraph (1) of this paragraph is denied, the applicant shall be given prompt notice of the denial, which shall include, or be accompanied by, a brief statement of the grounds therefor. (3) Notie* of the grant of on interim order. If an interim order is granted, a copy of the order shall be served upon the applicant for the order and other parties and the terms of the order shall be published in the Fed er al Reg is t er . It shall be a condition of the ord&r that the affected employer shall give notice thereof to affected employees by the same means to be used to inform them of an appli cation for a variance. c 1905.11--VARIANCES AND OTHER RELIEF UNDER SECTION 6(d) (o) Application for variance. Any employer, or class of employers, desir ing a variance authorized by section 6(d) of the Act may file a written application contain ing the information specified in paragraph (b) of this section, with the Assistant Secre tary for Occupational Safety and Health, U.S. Department of Labor, Washington, D.C. 20210. (b) Contents. An application filed pursuant to paragraph (a) of this section shall include: (1) The name and address of the applicant; (2) The address of the place or places of employment involved; (3) A description of the conditions, practices, means, methods, operations, or processes used or proposed to be used by the applicant; (4) A statement showing how the conditions, practices, means, methods, operations, or processes used or proposed to be used would provide employment and places of employ ment to employees which are as safe and lMS.ll(bX4) 68 CYWI 3-001057 OCCUPATIONAL 8AJTETY AND HEALTH 1EGULATI0NS AND WOPimrt-- healthful as those required by the standard from which a variance is sought; (5) A certification that the applicant has in formed his employees of the application by (i) Giving a copy thereof to their author ized representative; (ii) Posting a statement giving a summary of the application and specifying where a copy may be examined, at the place or places where notices to employees are nor mally posted (or in lieu of such summary, the posting of the application itself); and approved plan over any employment or place of employment covered in the application; and (iii) A statement as to whether, with an iden tification of, any citations for violations of the State standard, or portion thereof, in volved have been issued to the employer or employers by any of the State authorities en forcing the standard under a plan, and are pending. (40 F.R. 25449, June 16, 1975.1 (c) Interim order. () By other appropriate means; (6) Any request for a hearing, as provided in this part; and (7) A description of how employees have been informed of the application and of their right to petition the Assistant Secretary for a hearing. (8) Where the requested variance would be ap plicable to employment or places of employ ment in more than one State, including at least one State with a State plan approved under section 18 of the Act, and involves a standard, or portion thereof, identical to a State standard effective under such plan: (i) A side-by-side comparison of the Federal standard, or portion thereof, involved with the State standard, or portion thereof, iden tical in substance and requirements: (ii) A certification that the employer or employers have not filed for such variance on the same material facts for the same employment or place ofemployment with any State authority having jurisdiction under an (1) Application. An application may also be made for an interim order to be effective until a decision is rendered on the applica tion for the variance filed previously or con currently. An application for an interim order may include statements of fact and arguments as to why the order should^ be granted. The Assistant Secretary may rule ex parte upon the application. (2) Notice of dental of application. If an appli cation filed pursuant to subparagraph (1) of this paragraph is denied, the applicant shall be given prompt notice of the denial, which shall include, or be accompanied by, a brief statement of the grounds therefor. (3) Notice of the grant of on Interim order. If an interim order is granted, a copy of the order shall be served upon the applicant for the order and other parties, and the terms of the order shall be published in the Fe d e r a l Re g is t e r . It shall be a condition of the order that the affected employer shall give notice thereof to affected employees by the same means to be used to inform them of an application for a variance. 1905.12--LIMITATIONS, VARIATIONS, TOLERANCES, OR EXEMPTIONS UNDER SECTION 16 69 190&.12 CYW1 3-001058 l*OS.Ia) r eg u l at io n s an d pr o c ed u r es o c c u pat io n al s af et y an d h eal t h (a) Application. Any person, or class of persons, desiring a limitation, variation, tolerance, or exemption authorized by section 16 of the Act may file an application containing the information specified in paragraph (b) of this section, with the As sistant Secretary for Occupational Safety and Health. U.S. Department of Labor, Washington, D.C. 20210. (b) Contents. An application filed pursuant to paragraph (a) of this section shall include: (1) The name and address of the applicant; (2) The address of the place or places of em ployment involved; (3) A specification of the provision of the Act to or from which the applicant seeks a limi tation, variation, tolerance, or exemption. (4) A representation showing that the limita tion, variation, tolerance, or exemption sought is necessary and proper to avoid serious impairment of the national defense; (5) Any request for a hearing, as provided in this part; and (6) A description of how employees have been informed of the application and of their right to petition the Assistant Secretary for a hearing. (c) Interim order. (1) Application. An application may also be made for an interim order to be effective un til a decision is rendered on the application for the limitation, variation, tolerance, or ex emption filed previously or concurrently. An application for an interim order may include statements of fact and arguments as to why the order should be granted. The Assistant Secretary may rule ex parte upon the appli cation. (2) Notice of doniol of application. If an appli cation filed pursuant to subparagraph (1) of this paragraph is denied, the applicant shall be given prompt notice of the denial, which shall include, or be accompanied, by a brijef statement of the grounds therefor. (3) Notice of tho grant of an interim order. an interim order is granted, a copy of the order shall be served upon the applicant for the order and other parties, and the terms of the order shall be published in the Fed e r al Re g is t e r . It shall be a condition of the order that the affected employer shall give notice thereof to affected employees by the same means to be used to inform them of an application for a variance. 1905.13--MODIFICATION, REVOCATION, AND RENEWAL OF RULES OR ORDERS (a) Modification or revocation. (1) An affected employer or an affected em ployee may apply in writing to the Assistant Secretary of Labor for Occupational Safety and Health for a modification or revocation of a rule or order issued under section 6(b) (6) (A), 6(d), or 16 of the Act The applica tion shall contain: (1) The name and address of the applicant; lMS.13(aXlXtT> 70 (ii) A description of the relief which is sought; (III) A statement setting forth with partic ularity the grounds for relief; (lv) If the applicant is an employer, a cer tification that the applicant has informed his affected employees of the application by; 3.00l59 Cl*1 OCCUPATIONAL SAFETY AND HEALTH REGULATIONS AND PROCEDURES (a) Giving a copy thereof to their au thorized representative; (b) Posting at the place or places where notices to employees are normally posted, a statement giving a summary of the application and specifying where a copy of the full application may be examined (or, in lieu of the summary, posting the the application itself); and (c) Other appropriate means. (v) If the applicant is an affected em ployee, a certification that a copy of the application has been furnished to the em ployer; and <vi) Any request for a hearing, as provided in this pari (2) The Assistant Secretary may on his own motion proceed to modify or revoke a rule or order issued under section 6(b)(6)(A), 6(d), or 16 of the Act. In such event, the Assistant Secretary shall cause to be pub lished in the Fe d e r a l Re g is t e r a notice of his intention, affording interested persons an opportunity' to submit written data, views, or arguments regarding the proposal and informing the affected employer and em ployees of their right to request a hearing, and shall take such other action as may be appropriate to give actual notice to affected employees. Any request for a hearing shall include a short and plain statement of: (i) How the proposed modification or revo cation would affect the requesting party; and (ii) What the requesting party would seek to show on the subjects or issues involved. (b) Renewal. Any final rule or order issued under section 6(b)(6) (A) or 16 of the Act may be renewed or extended as permitted by the applicable sec tion and in the manner prescribed for its issu ance. (c) Multi-state variances. Where a Federal variance has been granted with multi-state applicability, including applica bility in a State operating under a State plan ap proved under section 18 of the Act, from a standard, or portion thereof, identical to a State stand ard, or portion thereof, without filing the infor mation required in $8 1905.10(b) (11) or 1945.11 (b) (8) of this chapter, such variance ihall likewise be deemed an authoritative interpreta tion of the employees)' compliance obligations with regard to the State standard, or portion thereof, upon filing the information required under 1905.10 (b) (11) or 1905.11 (b) (8) of this chapter, provided no objections of substance are found to be interposed by the State authority under 8 1905.14 of this chapter. (40 F.R. 25449, June 16, 1975.] 1905.14-ACTION ON APPLICATIONS (a) Defective applications. (1) If an application filed pursuant to 1905.10(a), 8 1905.11(a), 8 1905.12(a), or 8 1905.13 does not conform to the applicable section, the Assistant Secretary may deny . the application. (2) Prompt notice of the denial of an applica tion shall be given to the applicant (3) A notice of denial shall include, or be accompanied by, a brief statement of the grounds for the denial. (4) A denial of an application pursuant to this paragraph shall be without prejudice to the filing of another application. 71 190S.14UX4) CYWI 3-001060 l*OS.lb> REGULATIONS AND PROCEDURES OCCUPATIONAL SAFETY AND HEALTH (b) Adequate applications. 0) If an application has not been denied pur suant to paragraph (a) of this section, the Assistant Secretary shall cause to be pub lished in the Fe d er a l Re g is t e r a notice of the filing of the application. (2) A notice of the filing of an application shall include: (1) the terms, or an accurate summary, of the application; (ii) a reference to the section of the Act under which the application has been filed; (hi) an invitation to interested persons to submit within a stated period of time written data, views, or arguments regarding the appli cation; and (iv) information to affected employers, employees, and appropriate State authority having jurisdiction over employment' or places of employment covered in the applica tion of any right to request a hearing on the application. (3) Where the requested variance, or any pro posed modification or extension thereof, in volves a Federal standard, or any portion thereof, identical to a State standard, or any portion thereof, as provided in 5$ 1905.10(b) (ll> and 1905.11 (b) (8) of this chapter, the As sistant Secretary will promptly furnish a copy of the application to the appropriate State au thority and provide an opportunity for com ment, including the opportunity to participate as a party, on the application by such author ity,. which shall be taken into consideration in determining the merits of the proposed action. (4) A copy of each final decision of the Assistant Secretary with respect to an application filed under 15 1905.10, 1905.11, or 1905.13 shall be furnished,, within 10 days ofissuance, the State authorities having jurisdiction over the employment or place of employment covered in the application. [40F.R. 25449, June 16,1975.1 r 1905.15--REQUESTS FOR HEARINGS ON APPLICATIONS 1 (a) Request for hearing. paragraph (a) of this section shall include: Within the time allowed by a notice ofthe filing of an application, any affected employer, employ ee, or appropriate State agency having jurisdic tion over employment or places of employment covered in an application may file with the As sistant Secretary, in quadruplicate, a request for a hearing on the application. [40 F.R. 25449. June 16 1975.1 (t) A concise statement of facts showing how the employer or employee would be affected by the relief applied for; (2) A specification of any statement or rep resentation in the application which is de nied, and a concise summary of the evidence that would be adduced in support of each de nial; and (b) Contents of a request for a hearing. A request for a hearing filed pursuant to (3) Any views or arguments on any issue of fact or law presented. 1905.76-CONSOLIDATION OF PROCEEDINGS The Assistant Secretary on his own motion ings which involve the same or closely related or that of any party may consolidate or con- issues, temporaneously consider two or more proceed- iefts.it 72 CYWI 3-001061