N.Y. Comp. Codes R. & Regs. tit. 12 § 803.9

Current through Register Vol. 46, No. 51, December 18, 2024

Section 803.9 - Permanent variance

(a) Application for variance. Any employer or group of employers may apply to the commissioner for a permanent variance from any safety and health standard or any provision thereof adopted by the commissioner.

(b) Contents. The application for a permanent variance shall include:

(1) the name and address of the applicant;

(2) the address of the place or places of employment involved;

(3) a specification of the standard or portion thereof from which the applicant seeks a variance and the date by which abatement is required;

(4) a description of the conditions, practices, means, methods, operations or processes used or proposed to be used by the applicant and a statement showing how they would provide employment and places of employment to employees which are as safe and healthful as those which would prevail if the standard were complied with;

(5) a certification that the applicant has informed its employees of the application by:

(i) giving a copy to their authorized representative;

(ii) posting the application or a statement giving a summary of the application and specifying where a copy may be examined, at the place or places where notices to employees are normally posted;

(iii) attaching to the application a copy of the notification letter, the posting notice and other appropriate means; and

(iv) submitting the name(s), title(s), address(es) and union affiliation(s) of the employee representative(s) notified;

(6) in all instances where a permanent variance is sought the commissioner will schedule and conduct a hearing; and

(7) employers, employees and/or employee representatives will be informed of the dates, times and places of the hearings according to procedures established in the State Administrative Procedure Act.

(c) Interim order. Prior to or at the hearing, upon the request of the employer, the commissioner may issue an interim order describing conditions to be met by the employer prior to the decision on the application for a variance. If the request is denied, the applicant shall be given prompt notice of the denial, which shall include, or be accompanied by, a brief statement of the grounds therefor.

(1) Application. An application may also be made for an interim order to be effective until a decision is rendered on the application for the variance filed previously or concurrently. An application for an interim order may include statements of fact and arguments as to why the order should be granted. The commissioner may rule ex parte upon the application.

(2) Notice of denial of application. If an application filed pursuant to paragraph (1) of this subdivision is denied, the applicant shall be given prompt notice of the denial, which shall include, or be accompanied by, a brief statement of the grounds therefor.

(3) Notice of the grant of an interim order. If an interim order is granted, a copy of the order shall be served upon the applicant for the order and other parties, and the terms of the order shall be published in the State Register. It shall be a condition of the order that the affected employer shall give notice thereof to affected employees by the same means to be used to inform them of an application for a variance.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 803.9