OSHA Instruction FAP .2 July 8, 1981 Directorate of Training, Education, consultation and Federal Agency Programs

Subject: Procedures for Handling "Alternate" and "Supplementary" Standards Submitted by Federal Agencies

A. Purpose. This instruction establishes guidelines to be followed in processing alternate and supplementary standards submitted by other Federal agencies to the Secretary of Labor for review and approval.

B. Scope. This instruction applies OSHA-wide.

C. Action. Regional Administrators and National Office staff shall follow the procedures prescribed in this instruction in processing requests for alternate and supplementary standard reviews.

D. Background.

1. Executive Order 12196, effective October 1, 1980, levies certain requirements upon the Secretary of Labor, including the responsibility for reviewing and approving any request by agency heads to apply an alternate standard. Section 1-201(d) of this Executive Order states that the head of each agency shall:

"Comply with all standards issued under Section 6 of the Act, except where the Secretary approves compliance with alternative standards. When an agency head determines it is necessary to apply a different standard, that agency head shall, after consultation with appropriate Occupational Safety and Health Committees where established, notify the Secretary and provide justification that equivalent or greater protection will be assured by the alternate standard." [Emphasis added.]

OSHA Instruction FAP .2 July 8, 1981 Directorate of Training, Education, Consultation and Federal Agency Programs

2. Accordingly, 29 CFR Part 1960 has been revised as follows:

a. Section 29 CFR 1960.16 lists three situations where an agency head does not automatically have to provide the justification and supporting materials required under the normal approval procedures contained in 29 CFR 1960.17(b). These three situations are where a Federal agency, upon prior notification to the Secretary of Labor, wishes to enforce an alternate standard which:

(1) Contains a more stringent permissible exposure level (or threshold limit value) than the current Section 6 OSHA standard, or

(2) Requires more frequent monitoring of workplace exposures than the current Section 6 OSHA standard requires, or

(3) Utilizes a more recent edition of a reference standard; one that is newer and more stringent than the referenced standard currently incorporated in the Section 6 OSHA standard. However, in this case, the agency must also have had prior consultation with employees and with occupational safety and health committees where established.

Section 29 CFR 1960.16 allows the Secretary of Labor to require an agency to utilize the approval procedures contained in 29 CFR 1960.17(b) when, after prior notification by the agency, the Secretary of Labor determines that the protection afforded by the alternate standard may be inadequate.

OSHA Instruction FAP .2 July 8, 1981 Directorate of Training, Education, Consultation and Federal Agency Programs

b. Section 29 CFR 1960.17(b) states that any agency request to use an alternate standard shall not be approved by the Secretary of Labor unless it provides equivalent or greater protection for affected employees. This section also states that any such request shall include the following five items:

(1) A statement of why the agency cannot comply with the OSHA standard or wants to adopt an alternate standard.

(3) An explanation of how the alternate standard provides equivalent or greater protection.

(4) A description of interim protective measures afforded employees until the Secretary of Labor renders a decision.

(5) A summary of written comments, if any, from interested employees, employee representatives, and occupational safety and health committees, where established.

3. Section 29 CFR 1960.18(a) requires an agency head to adopt such supplementary standards as necessary and appropriate for application to working conditions of agency employees for which there exists no appropriate OSHA standards.

a. Before an agency officially adopts such a supplementary standard, Section 29 CFR 1960.18(b) requires the agency head to send the following to the Secretary of Labor:

(2) Copies of any written comments received from interested employees, their representatives, and occupational safety and health committees.

OSHA Instruction FAP .2 July 8, 1981 Directorate of Training, Education, Consultation and Federal Agency Programs

b. If the Secretary of Labor finds that the supplementary standard to be adopted is inconsistent with OSHA standards or inconsistent with OSHA enforcement practices under Section 5 (a)(1) of the Act, the Secretary has 15 working days in which to so notify the agency head. In such a case, the agency cannot adopt the supplementary standard. However, the agency must be given the opportunity to resubmit a revised version.

c. In addition, the Secretary of Labor, must upon request of the agency head, offer technical assistance in the development of the supplementary standards.

d. In order to avoid duplication of effort, Section 29 CFR 1960.18(a) recommends that the agency head notify the Secretary of Labor of the subject matter of any supplementary standard when the development of such a standard begins.

4. OSHA recognizes the importance of responding to these agency requests in a timely and responsible manner. The key to the success of this program element is the efficient, effective and professional review and evaluation of any proposed alternate standard to determine if they provide equivalent or greater protection than the applicable OSHA standards.

5. The procedures provided in this instruction are not intended to restrict the National Office Directors' utilization of resources in the most effective manner, nor are they intended to restrict the input or utilization of other interested parties. These procedures are intended to be guidelines.

E. Procedures.

1. All agency requests to use alternate and supplementary standards shall be forwarded to the Directorate of Training, Education, Consultation and Federal Agency Programs, Office of Federal Agency Programs (OFAP).

OSHA Instruction FAP .2 July 8, 1981 Directorate of Training, Education, Consultation and Federal Agency Programs

2. OFAP will be responsible for coordinating the review and review comments. This shall include the following activities:

a. Performing a preliminary review of the request to determine if the request contains all of the requirements specified in 29 CFR 1960.16, .17(b) or .18. If the agency request is deficient, OFAP shall notify the agency and request the additional information necessary.

b. Performing a cursory review of the alternate standards to determine if they are actually "alternate" standards and not "supplementary standards for which there are no comparable standards. OFAP should also, if necessary, reformat the alternate standards so they can be readily identified and compared with the corresponding OSHA standards.

c. Transmitting the relevant alternate and supplementary standards simultaneously to the appropriate Directorates for review and comment. Safety standards shall be transmitted to the Directorate of Safety Standards Programs. Health standards shall be transmitted to the Directorate of Health Standards Programs. The Directorate of Federal Compliance and State Programs shall also receive copies of the standards so they can be reviewed against any standard interpretations that OSHA may have issued. OFAP shall also transmit copies to all other Directorates for a cursory review. However, if comments from these other Directorates are not received in a timely fashion, concurrence may be assumed.

3. To expedite the reviewing process, each reviewing Directorate should first perform a preliminary review of the standards and inform OFAP of those alternate standards, if any, that clearly do not provide equivalent or greater protection for the affected employees.

OSHA Instruction FAP .2 July 8, 1981 Directorate of Training, Education, Consultation and Federal Agency Programs

The reviewing Directorate should also inform OFAP of those supplementary standards that are clearly inconsistent with an OSHA standard or with OSHA's 5 (a)(1) enforcement practices, as the Secretary has only 15 working days in which to so notify an agency head.

4. OFAP will coordinate all of the review comments received and resolve any conflicts before sending OSHA's response to the requesting agency head.

5. OFAP shall maintain the official set of approved alternate and supplementary standards. OFAP shall distribute all approved alternate and supplementary standards to the affected OSHA Regional Offices, and send a list of those approved standards to OMDS for appropriate use in MIS reports.

Thorne G. Auchter Assistant Secretary

DISTRIBUTION: National, Regional and Area Offices

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