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Chapter 7. Division of Labor Statistics and Research
Subchapter 1. Occupational Injury and Illness Reports and Records
Article 2. Employer Records of Occupational Injury or Illness
§ 14300.38. Variances from the Recordkeeping Rule.
(a) Basic requirement for private employers. If you are a private employer and wish to keep records in a different manner from the manner prescribed by the provisions of this article, you may submit a variance petition to the Assistant Secretary of Labor for Occupational Safety and Health (Assistant Secretary), U. S. Department of Labor, Washington, DC 20210. You can obtain a variance only if you can show that your alternative recordkeeping system:
(1) Collects the same information as this article requires;
(2) Meets the purposes of the Act; and
(3) Does not interfere with the administration of the Act.
(b) Implementation of the basic requirement for private employers.
(1) What do I need to include in my variance petition?
You must include the following items in your petition:
(A) Your name and address;
(B) A list of the State(s) where the variance would be used;
(C) The address(es) of the establishment(s) involved;
(D) A description of why you are seeking a variance;
(E) A description of the different recordkeeping procedures you propose to use;
(F) A description of how your proposed procedures will collect the same information as would be collected by the provisions of this article and achieve the purpose of the Act; and
(G) A statement that you have informed your employees of the petition by giving them or their authorized representative a copy of the petition and by posting a statement summarizing the petition in the same way as notices are posted under Title 8 Section 340.
(2) How will the Assistant Secretary handle my variance petition?
The Assistant Secretary will take the following steps to process your variance petition.
(A) The Assistant Secretary will offer your employees and their authorized representatives an opportunity to submit written data, views, and arguments about your variance petition.
(B) The Assistant Secretary may allow the public to comment on your variance petition by publishing the petition in the Federal Register. If the petition is published, the notice will establish a public comment period and may include a schedule for a public meeting on the petition.
(C) After reviewing your variance petition and any comments from your employees and the public, the Assistant Secretary will decide whether or not your proposed recordkeeping procedures will meet the purposes of the Act, will not otherwise interfere with the Act, and will provide the same information as required by the provisions of this article provide. If your procedures meet these criteria, the Assistant Secretary may grant the variance subject to such conditions as he or she finds appropriate.
(D) If the Assistant Secretary grants your variance petition, OSHA will publish a notice in the Federal Register to announce the variance. The notice will include the practices the variance allows you to use, any conditions that apply, and the reasons for allowing the variance.
(3) If I apply for a variance, may I use my proposed recordkeeping procedures while the Assistant Secretary is processing the variance petition?
No. Alternative recordkeeping practices are only allowed after the variance is approved. You must comply with the provisions of this article while the Assistant Secretary is reviewing your variance petition.
(4) If I have already been cited by the Division of Occupational Safety and Health for not following the provisions of this article, will my variance petition have any effect on the citation and penalty?
No. In addition, the Assistant Secretary may elect not to review your variance petition if it includes an element for which you have been cited and the citation is still under review by a court, an Administrative Law Judge (ALJ), or the California Occupational Safety and Health Appeals Board.
(5) If I receive a variance, may the Assistant Secretary revoke the variance at a later date?
Yes. The Assistant Secretary may revoke your variance if he or she has good cause. The procedures revoking a variance will follow the same process as are used for reviewing variance petitions, as outlined in Section 14300.38(b)(2). Except in cases of willfulness or where necessary for public safety, the Assistant Secretary will:
(A) Notify you in writing of the facts or conduct that may warrant revocation of your variance; and
(B) Provide you, your employees, and authorized employee representatives with an opportunity to participate in the revocation procedures.
(c) Variances from the recordkeeping rule for public employers. A public agency employer wishing to keep records in a different manner from the manner prescribed in this article may write a letter to the Chief of the Division of Labor Statistics and Research stating his or her request. Such requests should include the information described in subsection (b)(1) of this section for private employer requests for variances from requirements of this article. The provisions of subsections (b)(2) through (b)(5) of this section will also apply to variance requests from public agency employers except that the determining authority will be the Chief of the Division of Labor Statistics and Research.