(a) Procedures for an approval recommendation.

(1) If the Associate Under Secretary for Environment, Health, Safety and Security recommends approval of a variance application, the Associate Under Secretary must forward to the Under Secretary the variance application and the approval recommendation including a discussion of the basis for the recommendation and any terms and conditions proposed for inclusion as part of the approval.

(2) If the Under Secretary approves a variance, the Under Secretary must notify the Associate Under Secretary for Environment, Health, Safety and Security who must notify the Office of Enforcement and the CSO who must promptly notify the contractor.

(3) The notification must include a reference to the safety and health standard or portion thereof that is the subject of the application, a detailed description of the variance, the basis for the approval and any terms and conditions of the approval.

(4) If the Under Secretary denies a variance, the Under Secretary must notify the Associate Under Secretary for Environment, Health, Safety and Security who must notify the appropriate CSO who must notify the contractor.

(5) The notification must include the grounds for denial.

(b) Approval criteria. A variance may be granted if the variance:

(1) Is consistent with section 3173 of the NDAA;

(2) Does not present an undue risk to worker safety and health;

(3) Is warranted under the circumstances;

(4) Satisfies the requirements of §851.31 of this part for the type of variance requested.

(c) Procedures for a denial recommendation.

(1) If the Associate Under Secretary for Environment, Health, Safety and Security recommends denial of a variance application, the Associate Under Secretary must notify the CSO of the denial recommendation and the grounds for the denial recommendation.

(2) Upon receipt of a denial recommendation, the CSO may:

(i) Notify the contractor that the variance application is denied on the grounds cited by the Associate Under Secretary for Environment, Health, Safety and Security; or

(ii) Forward to the Under Secretary the variance application, the denial recommendation, the grounds for the denial recommendation, and any information that supports an action different than that recommended by the Associate Under Secretary for Environment, Health, Safety and Security.

(3) If the CSO forwards the application to the Under Secretary, the procedures in paragraphs (a)(2), (3), (4) and (5) of this section apply.

(4) A denial of an application pursuant to this section shall be without prejudice to submitting of another application

(d) Grounds for denial of a variance. A variance may be denied if:

(1) Enforcement of the violation would be handled as a de minimis violation (defined as a deviation from the requirement of a standard that has no direct or immediate relationship to safety or health, and no enforcement action will be taken);

(2) When a variance is not necessary for the conditions, practice, means, methods, operations, or processes used or proposed to be used by contractor;

(3) Contractor does not demonstrate that the approval criteria are met.

[71 FR 6931, Feb. 9, 2006, as amended at 71 FR 68733, Nov. 28, 2006; 80 FR 5009, Jan. 30, 2015]