6.
Occupational Safety and Health Standards
29
USC 655:
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(a)
Without regard to chapter 5 of title 5, United States Code, or to
the other subsections of this section, the Secretary shall, as
soon as practicable during the period beginning with the effective
date of this Act and ending two years after such date, by rule
promulgate as an occupational safety or health standard any
national consensus standard, and any established Federal standard,
unless he determines that the promulgation of such a standard
would not result in improved safety or health for specifically
designated employees. In the event of conflict among any such
standards, the Secretary shall promulgate the standard which
assures the greatest protection of the safety or health of the
affected employees.
(b) The Secretary may by rule
promulgate, modify, or revoke any occupational safety or health
standard in the following manner:
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(1)
Whenever the Secretary, upon the basis of information submitted to
him in writing by an interested person, a representative of any
organization of employers or employees, a nationally recognized
standards-producing organization, the Secretary of Health and
Human Services, the National Institute for Occupational Safety and
Health, or a State or political subdivision, or on the basis of
information developed by the Secretary or otherwise available to
him, determines that a rule should be promulgated in order to
serve the objectives of this Act, the Secretary may request the
recommendations of an advisory committee appointed under section 7
of this Act. The Secretary shall provide such an advisory
committee with any proposals of his own or of the Secretary of
Health and Human Services, together with all pertinent factual
information developed by the Secretary or the Secretary of Health
and Human Services, or otherwise available, including the results
of research, demonstrations, and experiments. An advisory
committee shall submit to the Secretary its recommendations
regarding the rule to be promulgated within ninety days from the
date of its appointment or within such longer or shorter period as
may be prescribed by the Secretary, but in no event for a period
which is longer than two hundred and seventy days.
(2)
The Secretary shall publish a proposed rule promulgating,
modifying, or revoking an occupational safety or health standard
in the Federal Register and shall afford interested persons a
period of thirty days after publication to submit written data or
comments. Where an advisory committee is appointed and the
Secretary determines that a rule should be issued, he shall
publish the proposed rule within sixty days after the submission
of the advisory committee's recommendations or the expiration of
the period prescribed by the Secretary for such submission.
(3)
On or before the last day of the period provided for the
submission of written data or comments under paragraph (2), any
interested person may file with the Secretary written objections
to the proposed rule, stating the grounds therefore and requesting
a public hearing on such objections. Within thirty days after the
last day for filing such objections, the Secretary shall publish
in the Federal Register a notice specifying the occupational
safety or health standard to which objections have been filed and
a hearing requested, and specifying a time and place for such
hearing.
(4) Within sixty days after the expiration of
the period provided for the submission of written data or comments
under paragraph (2), or within sixty days after the completion of
any hearing held under paragraph (3), the Secretary shall issue a
rule promulgating, modifying, or revoking an occupational safety
or health standard or make a determination that a rule should not
be issued. Such a rule may contain a provision delaying its
effective date for such period (not in excess of ninety days) as
the Secretary determines may be necessary to insure that affected
employers and employees will be informed of the existence of the
standard and of its terms and that employers affected are given an
opportunity to familiarize themselves and their employees with the
existence of the requirements of the standard.
(5) The
Secretary, in promulgating standards dealing with toxic materials
or harmful physical agents under this subsection, shall set the
standard which most adequately assures, to the extent feasible, on
the basis of the best available evidence, that no employee will
suffer material impairment of health or functional capacity even
if such employee has regular exposure to the hazard dealt with by
such standard for the period of his working life. Development of
standards under this subsection shall be based upon research,
demonstrations, experiments, and such other information as may be
appropriate. In addition to the attainment of the highest degree
of health and safety protection for the employee, other
considerations shall be the latest available scientific data in
the field, the feasibility of the standards, and experience gained
under this and other health and safety laws. Whenever practicable,
the standard promulgated shall be expressed in terms of objective
criteria and of the performance desired.
(6) (A) Any
employer may apply to the Secretary for a temporary order granting
a variance from a standard or any provision thereof promulgated
under this section. Such temporary order shall be granted only if
the employer files an application which meets the requirements of
clause (B) and establishes
that --
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(i)
he is unable to comply with a standard by its effective date
because of unavailability of professional or technical personnel
or of materials and equipment needed to come into compliance with
the standard or because necessary construction or alteration of
facilities cannot be completed by the effective date,
(ii)
he is taking all available steps to safeguard his employees
against the hazards covered by the standard, and
(iii)
he has an effective program for coming into compliance with the
standard as quickly as practicable.
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Any
temporary order issued under this paragraph shall prescribe the
practices, means, methods, operations, and processes which the
employer must adopt and use while the order is in effect and state
in detail his program for coming into compliance with the
standard. Such a temporary order may be granted only after notice
to employees and an opportunity for a hearing: Provided,
That
the Secretary may issue one interim order to be effective until a
decision is made on the basis of the hearing. No temporary order
may be in effect for longer than the period needed by the employer
to achieve compliance with the standard or one year, whichever is
shorter, except that such an order may be renewed not more that
twice (I) so long as the requirements of this paragraph are met
and (II) if an application for renewal is filed at least 90 days
prior to the expiration date of the order. No interim renewal of
an order may remain in effect for longer than 180 days.
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(B)
An application for temporary order under this paragraph (6) shall
contain:
(i) a specification of the standard or portion
thereof from which the employer seeks a variance,
(ii)
a representation by the employer, supported by representations
from qualified persons having firsthand knowledge of the facts
represented, that he is unable to comply with the standard or
portion thereof and a detailed statement of the reasons
therefor,
(iii) a statement of the steps he has taken
and will take (with specific dates) to protect employees against
the hazard covered by the standard,
(iv) a statement of
when he expects to be able to comply with the standard and what
steps he has taken and what steps he will take (with dates
specified) to come into compliance with the standard, and
(v)
a certification that he has informed his employees of the
application by giving a copy thereof to their authorized
representative, posting 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,
and by other appropriate means.
A description of how
employees have been informed shall be contained in the
certification. The information to employees shall also inform them
of their right to petition the Secretary for a hearing.
(C)
The Secretary is authorized to grant a variance from any standard
or portion thereof whenever he determines, or the Secretary of
Health and Human Services certifies, that such variance is
necessary to permit an employer to participate in an experiment
approved by him or the Secretary of Health and Human Services
designed to demonstrate or validate new and improved techniques to
safeguard the health or safety of workers.
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(7)
Any standard promulgated under this subsection shall prescribe the
use of labels or other appropriate forms of warning as are
necessary to insure that employees are apprised of all hazards to
which they are exposed, relevant symptoms and appropriate
emergency treatment, and proper conditions and precautions of safe
use or exposure. Where appropriate, such standard shall also
prescribe suitable protective equipment and control or
technological procedures to be used in connection with such
hazards and shall provide for monitoring or measuring employee
exposure at such locations and intervals, and in such manner as
may be necessary for the protection of employees. In addition,
where appropriate, any such standard shall prescribe the type and
frequency of medical examinations or other tests which shall be
made available, by the employer or at his cost, to employees
exposed to such hazards in order to most effectively determine
whether the health of such employees is adversely affected by such
exposure. In the event such medical examinations are in the nature
of research, as determined by the Secretary of Health and Human
Services, such examinations may be furnished at the expense of the
Secretary of Health and Human Services. The results of such
examinations or tests shall be furnished only to the Secretary or
the Secretary of Health and Human Services, and, at the request of
the employee, to his physician. The Secretary, in consultation
with the Secretary of Health and Human Services, may by rule
promulgated pursuant to section 553 of title 5, United States
Code, make appropriate modifications in the foregoing requirements
relating to the use of labels or other forms of warning,
monitoring or measuring, and medical examinations, as may be
warranted by experience, information, or medical or technological
developments acquired subsequent to the promulgation of the
relevant standard.
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(8)
Whenever a rule promulgated by the Secretary differs substantially
from an existing national consensus standard, the Secretary shall,
at the same time, publish in the Federal Register a statement of
the reasons why the rule as adopted will better effectuate the
purposes of this Act than the national consensus standard.
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(c)
(1) The Secretary shall provide, without regard to the
requirements of chapter 5, title 5, Unites States Code, for an
emergency temporary standard to take immediate effect upon
publication in the Federal Register if he determines --
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(A)
that employees are exposed to grave danger from exposure to
substances or agents determined to be toxic or physically harmful
or from new hazards, and
(B) that such emergency
standard is necessary to protect employees from such danger.
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(2)
Such standard shall be effective until superseded by a standard
promulgated in accordance with the procedures prescribed in
paragraph (3) of this subsection.
(3) Upon publication
of such standard in the Federal Register the Secretary shall
commence a proceeding in accordance with section 6 (b) of this
Act, and the standard as published shall also serve as a proposed
rule for the proceeding. The Secretary shall promulgate a standard
under this paragraph no later than six months after publication of
the emergency standard as provided in paragraph (2) of this
subsection.
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(d)
Any affected employer may apply to the Secretary for a rule or
order for a variance from a standard promulgated under this
section. Affected employees shall be given notice of each such
application and an opportunity to participate in a hearing. The
Secretary shall issue such rule or order if he determines on the
record, after opportunity for an inspection where appropriate and
a hearing, that the proponent of the variance has demonstrated by
a preponderance of the evidence that the conditions, practices,
means, methods, operations, or processes used or proposed to be
used by an employer will provide employment and places of
employment to his employees which are as safe and healthful as
those which would prevail if he complied with the standard. The
rule or order so issued shall prescribe the conditions the
employer must maintain, and the practices, means, methods,
operations, and processes which he must adopt and utilize to the
extent they differ from the standard in question. Such a rule or
order may be modified or revoked upon application by an employer,
employees, or by the Secretary on his own motion, in the manner
prescribed for its issuance under this subsection at any time
after six months from its issuance.
(e) Whenever the
Secretary promulgates any standard, makes any rule, order, or
decision, grants any exemption or extension of time, or
compromises, mitigates, or settles any penalty assessed under this
Act, he shall include a statement of the reasons for such action,
which shall be published in the Federal Register.
(f)
Any person who may be adversely affected by a standard issued
under this section may at any time prior to the sixtieth day after
such standard is promulgated file a petition challenging the
validity of such standard with the United States court of appeals
for the circuit wherein such person resides or has his principal
place of business, for a judicial review of such standard. A copy
of the petition shall be forthwith transmitted by the clerk of the
court to the Secretary. The filing of such petition shall not,
unless otherwise ordered by the court, operate as a stay of the
standard. The determinations of the Secretary shall be conclusive
if supported by substantial evidence in the record considered as a
whole.
(g) In determining the priority for establishing
standards under this section, the Secretary shall give due regard
to the urgency of the need for mandatory safety and health
standards for particular industries, trades, crafts, occupations,
businesses, workplaces or work environments. The Secretary shall
also give due regard to the recommendations of the Secretary of
Health and Human Services regarding the need for mandatory
standards in determining the priority for establishing such
standards.
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