OSHA 1902.8
Federal and State variance authority
1902 Subpart B
Questions & Answers
Under 1902.8(b), may a State action under its OSHA plan conflict with a Secretary-issued variance or exemption?
Under 1902.8(c), can an employer seek a variance from a State standard that is identical to a Federal standard from the Assistant Secretary, and when is that option available?
Yes — when a State standard is identical to a Federal standard addressing the same hazard, an employer or group of employers seeking a temporary or permanent variance that would apply in more than one State (including at least one State with an approved plan) may elect to apply to the Assistant Secretary under the procedures in 29 CFR part 1905. See 1902.8(c) and the variance application rules at 29 CFR part 1905.
If the Assistant Secretary issues an interim order or grants/denies a variance under 1902.8(d), how does that affect employers’ compliance obligations under identical State standards?
Under 1902.8(e), if an employer files a variance request with either the Assistant Secretary or a State agency, can the other authority later consider the same application on the same facts?
No — filing with, or any final action (granting, denial, modification, or revocation) by, one authority (Federal or State) will preclude further substantive consideration of the same application on the same material facts by the other authority. See 1902.8(e).
Under 1902.8(f), can Federal or State agencies still issue citations where no variance or interim order applies?
Yes — nothing in 1902.8 stops Federal or State authorities from citing for noncompliance with standards in workplaces where no interim order, variance, or modification applies, nor from citing for violations of a Federal or State variance action where applicable. See 1902.8(f).
How do I apply for a variance that would cover workplaces in more than one State under the rule in 1902.8(c)?
Apply to the Assistant Secretary under the procedures set out in 29 CFR part 1905; that federal process is the route employers may use when a State standard is identical to the Federal standard and the variance would apply across multiple States. See 1902.8(c) and the application procedures at 29 CFR part 1905.
What must an employer demonstrate to obtain a permanent variance under the procedures referenced in 1902.8 and 29 CFR part 1905?
The employer must show that the alternative practices, equipment, or procedures proposed will provide a place of employment that is as safe and healthful as the one required by the standard from which the variance is sought; variances are narrow in scope and specify the conditions or alternatives the employer must follow. See 29 CFR part 1905 and guidance in OSHA interpretations such as the overhead crane lateral clearance letter explaining variance eligibility and the need to prove equivalency (see https://www.osha.gov/laws-regs/standardinterpretations/2001-04-06-0).
Can an employer obtain interim relief while pursuing a permanent variance application under 29 CFR part 1905?
No — OSHA has stated that section 6(d) of the Act (which authorizes permanent variances) does not itself provide for interim relief, and certain provisions in part 1905 that reference interim orders are inoperative for permanent variances; OSHA’s guidance on this point is in the agency’s interpretation about safety-valve variance requests. See the OSHA interpretation explaining interim relief limitations (https://www.osha.gov/laws-regs/standardinterpretations/1995-05-25-1) and 29 CFR part 1905.
If OSHA denies a variance because the proposed alternative doesn’t provide equivalent protection, what guidance explains how OSHA evaluates equivalence?
OSHA evaluates variance proposals by considering whether the proposed conditions, practices, means, methods, operations, or processes will provide workplaces that are as safe and healthful as those required by the standard, taking into account worst-case situations; this approach is explained in variance denial decisions such as the digester building exits variance letter. See the digester building exits interpretation (https://www.osha.gov/laws-regs/standardinterpretations/1996-05-29) and 29 CFR part 1905.
Under 1902.8(e), may an employer choose to apply to a State agency instead of the Assistant Secretary for a variance affecting multiple States?
Yes — 1902.8(e) explicitly preserves the employer’s option to apply for a temporary or permanent variance either to the Assistant Secretary or to the involved State agencies; however, filing with one authority then precludes the other from re‑considering the same material facts. See 1902.8(e) and 29 CFR part 1905.
If the Assistant Secretary issues an interim order on a variance application, does that interim order change how State-plan enforcement applies in the covered workplaces?
Yes — actions by the Assistant Secretary, including interim orders, are deemed prospectively to be authoritative interpretations of employers’ compliance obligations with respect to the identical State standard in the workplaces covered by the application, so they affect how compliance is interpreted in those workplaces. See 1902.8(d).
When OSHA reviews a variance request that would allow employees to be under suspended loads, what does the agency require from the applicant?
OSHA requires the applicant to demonstrate why the standard cannot be met (infeasibility) and to show that proposed alternative measures will provide a level of worker protection at least equivalent to the standard; OSHA’s letters on crane-load variances explain that applicants must document infeasibility and address applicable related standards such as keeping employees clear of suspended loads. See the variance guidance in the crane-load letters (https://www.osha.gov/laws-regs/standardinterpretations/1995-09-18 and https://www.osha.gov/laws-regs/standardinterpretations/1999-03-24) and 29 CFR part 1905.
Does 1902.8(c) let an employer seek a single federal variance that will apply in both Federal and State-plan jurisdictions when standards are identical?
Yes — when a State standard is identical to a Federal standard, an employer may elect to apply to the Assistant Secretary for a variance that would be applicable to employment in more than one State, including at least one State with an approved plan, under the procedures in 29 CFR part 1905; see 1902.8(c).
If a State issued a prior regional letter of interpretation that seems to exempt a specific structure from a standard, must employers rely on that regional LOI instead of compliance with the standard?
No — OSHA’s National Office interpretations control and a regional LOI may be superseded by a National Office LOI; in the wind-turbine fixed ladder example, OSHA clarified that fixed ladders in wind turbines must comply with 29 CFR 1910.27 and that National Office guidance supersedes inconsistent regional letters. See the wind-turbine fixed-ladders interpretation (https://www.osha.gov/laws-regs/standardinterpretations/2013-01-31-1) and 1902.
If a variance is granted only for certain workplaces, can OSHA still cite other workplaces for noncompliance with the standard?
Yes — 1902.8(f) preserves the authority of Federal and State agencies to cite for noncompliance in workplaces where no interim order, variance, or modification applies, and to cite for violations of a variance action where applicable. See 1902.8(f).
What practical steps should a multi-state employer take before applying for a variance under [29 CFR part 1905] when the State standard is identical to the Federal standard?
Start by documenting why compliance is infeasible or why the employer needs an alternative, develop a clear proposal showing how the alternative provides equivalent protection, gather supporting engineering and safety analyses, and submit the application to the Assistant Secretary following the rules in 29 CFR part 1905; OSHA’s variance-related letters (for example, the overhead-crane and crane-load variance letters) describe the types of information and proofs that are typically required (https://www.osha.gov/laws-regs/standardinterpretations/2001-04-06-0 and https://www.osha.gov/laws-regs/standardinterpretations/1999-03-24).
Can an employer use an OSHA interpretation letter as the basis to avoid applying for a variance under 1902.8?
No — an interpretation letter may clarify how a standard applies but does not replace the statutory variance process; if an employer cannot meet a standard, the formal variance procedures in 29 CFR part 1905 are the appropriate path, and OSHA’s interpretation letters (for example, the digester building exits decision) show that OSHA will review whether proposed alternatives truly provide equivalent protection (https://www.osha.gov/laws-regs/standardinterpretations/1996-05-29).