Subpart C
The applicant for the variance proceeds first at the hearing unless the presiding hearing examiner orders otherwise.
The party applying for the variance has the burden of proof and must show the requested relief meets the legal standard.
A party may present oral evidence, documentary evidence, rebuttal evidence, and conduct cross-examination necessary to fully disclose the facts.
Yes — the presiding hearing examiner must exclude evidence that is irrelevant, immaterial, or unduly repetitious.
Yes — the presiding hearing examiner must administer an oath or affirmation to witnesses before they testify.
A party should briefly state the grounds for any objection at the time the issue arises so the objection can be ruled on and entered into the record.
No — a formal exception to an adverse ruling is not required to preserve an objection for the record.
Official notice is the examiner's recognition of material facts not in the record (matters of judicial notice or areas where the Department is presumed expert), and parties must be given adequate notice and opportunity to rebut.
Yes — hearings must be stenographically reported, and parties can obtain copies of the transcript by written application to the reporter and payment of the reporter's fees.
Yes — the presiding hearing examiner may order a different order of proceeding if they find it appropriate.
Yes — a party is entitled to present rebuttal evidence and conduct cross-examination necessary for a full and true disclosure of the facts.
Yes — rulings on all objections must appear in the record so the basis for decisions is documented.
Yes — parties must be given adequate opportunity to show the contrary to any matter officially noticed.
To obtain a permanent variance, an applicant must prove that the alternative practices or equipment will provide working conditions as safe and healthful as compliance with the standard and must follow the procedures in 29 CFR Part 1905.
No — OSHA's long-standing position is that section 6(d) does not provide for interim relief, so interim orders are inoperative even though 29 CFR 1905.11 references them.
Yes — the examiner can limit the scope of cross-examination to prevent irrelevant or unduly repetitious questioning, but parties should briefly state the grounds for objection to any limitation so the ruling appears in the record.
Parties pay the reporter's fees set by the reporter's agreement when they request copies of the stenographic transcript.
Yes — the examiner may take official notice of material facts that are traditional matters of judicial notice or areas where the Department is presumed expert, but must give parties notice and an opportunity to rebut those facts.
An employer may apply for a variance, but to get a permanent variance permitting employees to be under suspended or indeterminate loads the applicant must prove that alternative methods will provide protection as safe and healthful as the standard; OSHA will closely review such requests and often denies them unless strict alternative controls are shown.
OSHA evaluates variance proposals by considering the worst-case conditions and whether the proposed alternative provides a level of health and safety at least equivalent to the standard; proposals that compromise rescue or emergency egress are likely to be denied.
Yes — documentary evidence may be received and should be introduced and marked according to the examiner's procedures, but it can be excluded if irrelevant, immaterial, or unduly repetitious just like oral testimony.
If a party fails to make an objection before the presiding hearing examiner, they generally cannot rely on that objection later in the proceeding; timely objections must be made on the record to preserve review.