OSH Act 6 USC 655

6. Occupational Safety and Health Standards
29 USC 655:
(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:
(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 -(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.
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

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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.
(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.
(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

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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.
(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.
(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
-(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.
(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.
(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

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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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