(a) An employer may apply for a permanent, structural variance from
a specific standard(s) in this subpart by filing a written application
for such a variance with the local Job Service office serving the area
in which the housing is located. This application must be filed by June
2, 1980 and must:
(1) Clearly specify the standard(s) from which the variance is
desired;
(2) Provide adequate justification that the variance is necessary to
obtain a beneficial use of an existing facility, and to prevent a
practical difficulty or unnecessary hardship; and
(3) Clearly set forth the specific alternative measures which the
employer
has taken to protect the health and safety of workers and adequately
show that such alternative measures have achieved the same result as the
standard(s) from which the employer desires the variance.
(b) Upon receipt of a written request for a variance under paragraph
(a) of this section, the local Job Service office shall send the request
to the State office which, in turn, shall forward it to the Regional
Administrator, Employment and Training Administration (RA). The RA shall
review the matter and, after consultation with OSHA, shall either grant
or deny the request for a variance.
(c) The variance granted by the RA shall be in writing, shall state
the particular standard(s) involved, and shall state as conditions of
the variance the specific alternative measures which have been taken to
protect the health and safety of the workers. The RA shall send the
approved variance to the employer and shall send copies to the Regional
Administrator of the Occupational Safety and Health Administration, the
Regional Administrator of the Employment Standards Administration, and
the appropriate State agency and the local Job Service office. The
employer shall submit and the local Job Service office shall attach
copies of the approved variance to each of the employer's job orders
which is placed into intrastate or interstate clearance.
(d) If the RA denies the request for a variance, the RA shall
provide written notice stating the reasons for the denial to the
employer, the appropriate State agency and the local Job Service office.
The notice shall also offer the employer an opportunity to request a
hearing before a DOL Hearing Officer, provided the employer requests
such a hearing from the RA within 30 calendar days of the date of the
notice. The request for a hearing shall be handled in accordance with
the employment service complaint procedures set forth at Secs. 658.421
(i) and (j), 658.422 and 658.423 of this chapter.
(e) The procedures of paragraphs (a) through (d) of this section
shall only apply to an employer who has chosen, as evidenced by its
written request for a variance, to comply with the ETA housing standards
at Secs. 654.404--654.417 of this subpart.
