OSHA Recordkeeping Handbook - denix

§1904.38cited and the citation is still under review by a court,an Administrative Law Judge (ALJ), or the OSHReview Commission.The final rule also states that the AssistantSecretary may revoke a variance at a later date if theAssistant Secretary has good cause to do so, andthat the procedures for revoking a variance will followthe same process as OSHA uses for reviewingvariance petitions. Except in cases of willfulness orwhere necessary for public safety, the AssistantSecretary will: Notify the employer in writing of thefacts or conduct that may warrant revocation of avariance and provide the employer, employees, andauthorized employee representatives with an opportunityto participate in the revocation procedures.......This section of the final rule codifies the shift inresponsibilities from the BLS to OSHA with regard tovariances....The final rule adds several provisions to those ofthe former rule. They include (1) the identification ofpetitioning employers’ pending citations in State planstates, (2) the discretion given to OSHA not to considera petition if a citation on the same subject matteris pending, (3) the clarification that OSHA mayprovide additional notice via the Federal Register andopportunity for comment, (4) the clarification thatvariances have only prospective effect, (5) the opportunityof employees and their representatives to participatein revocation procedures, and (6) the voidingof all previous variances and exceptions....OSHA has decided, after further consideration, tocontinue to include a specific recordkeeping variancesection in the final rule, and not to require employerswho wish a recordkeeping variance or exception tofollow the more rigorous procedures in 29 CFR Part1905. The procedures in Part 1905, which were developedfor rules issued under sections 6 and 16 of theOSH Act, may not be appropriate for rules issuedunder section 8 of the Act, such as this recordkeepingrule.The final rule thus retains a section on varianceprocedures for the recordkeeping rule. OSHAbelieves that few variances or exceptions will begranted under the variance procedures of the finalrule because other provisions of the final rule alreadyreflect many of the alternative recordkeeping proceduresthat employers have asked to use over theyears, such as electronic storage and transmission ofdata, centralized record maintenance, and the use ofalternative recordkeeping forms. Because thesechanges have been made to other sections of thefinal rule, there should be little demand for variancesor exceptions....The final changes to the variance section of theformer rule are minor. The primary change is tomake clear that OSHA, rather than the BLS, has theresponsibility for granting recordkeeping variancesor exceptions....Paragraph (i) of the final rule supports paragraph(c)(7) from this same section because it provides amechanism for giving OSHA notice of a citationpending before a state agency. Paragraph (i) alsoclarifies that variances only apply to future events,not to past practices. Paragraph (j) of section 1904.38of the final rule nullifies all prior variances and exceptions.OSHA believes that it is important to beginwith a “clean slate” when the final recordkeepingrule goes into effect. Employers with existing variancescan repetition the agency if the final rule doesnot address their needs. Another addition to the finalrule makes explicit that OSHA can provide additionalpublic notice via the Federal Register and may offeradditional opportunity for public comment. A finaladdition recognizes and makes clear that employeescan participate in variance revocation proceedings.FREQUENTLY ASKED QUESTIONS: Section 1904.38 (OSHA Instruction, CPL 2-0.131, Chap. 5)Section 1904.38 Variances from the recordkeeping ruleThis section will be developed as letters of interpretation become available.LETTERS OF INTERPRETATION: Section 1904.38Section 1904.38 Variances from the recordkeeping ruleThis section will be developed as letters of interpretation become available.164OSHA RECORDKEEPINGHANDBOOK