March 10, 2015

Mr. Devin Kieschnick
Owner
Devin Kieschnick Farms
11244 FM 433
Vernon, TX 76384 
Dear Mr. Kieschnick:
The Occupational Safety and Health Administration (OSHA) received your letter dated February 10, 2015, requesting a permanent variance on behalf of Devin Kieschnick Farms ("DK Farms" or "the applicant").  DK Farms seeks a permanent variance from OSHA's general industry temporary labor camps standard.  The standard requires employers to provide each room used for sleeping purposes with at least 50 square feet of floor space for each occupant and at least a 7-foot ceiling (29 CFR 1910.142(b)(2)).  
OSHA is denying, without prejudice, DK Farms' request for a permanent variance.  DK Farms did not propose an alternative means of compliance that would protect its employees at least as effectively as the protection the standard affords.  
In describing its work activities, DK Farms indicated it uses a room with a 6 foot 6 inch ceiling as shelter for a temporary employee.  DK Farms' variance application did not contain any provisions for alternate means of protection.  This lack of compliance with the standard does not provide any basis for granting a variance.  Essentially, DK Farms' application is a request for an exemption from the standard's ceiling height requirements.  Exemptions do not provide employees with the requisite protection specified by Section 6(d) of the Occupational Safety and Health Act of 1970 (OSH Act)(29 U.S.C. 651, 655(d)) and are not permitted under OSHA's Variance Program.  A request for an exemption from the requirements of a standard is not a recognized or acceptable alternative means of compliance to a standard; rulemaking is typically required to add an exemption to a standard. 
DK Farms may reapply for a permanent variance if it develops an alternative means of compliance that it can demonstrate would provide its employees with protection that is "as safe and healthful as those which would prevail if [the employer] complied with the standard" (29 U.S.C. 655(d); 29 CFR 1905.11(b)(4)). 
DK Farms must post a copy of this letter at the place(s) where it normally posts notices to workers (see Variance Policy and Procedures, 2.1 STD 06-00-001 (October 30, 1978); available on OSHA's Webpage at:  http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=1826).  


If you have any questions regarding this letter, please contact Steve Weisz at 202-693-2110 or by e-mail at weisz.stefan@dol.gov.
Thank you for your interest in worker safety and health.

Sincerely,
Amanda L. Edens
Director
Directorate of Technical Support and Emergency Management


Copy to: 
Doug Kalinowski, Director, OSHA Directorate of Cooperative and State Programs 
John M. Hermanson, Regional Administrator, OSHA Region 6, Dallas, TX
Jack Rector, Area Director, Fort Worth Area Office, OSHA Region 6, Ft. Worth, TX 
