Promulgation of New Standards

The OSH Act requires that a covered employer must comply with specific occupational safety and health standards, as well as all rules, regulations, and orders pursuant to the OSH Act that apply to the workplace [U.S.C 655(b)]. The Act also requires that all standards be backed by research, demonstration, experimentation, or another form of appropriate information gathering. The secretary of labor has authorization under the Act to “promulgate, modify, or revoke any occupational safety and health standard” [29 U.S.C 1910]. However, the secretary must follow procedures when establishing new occupational safety standards.

Under the OSH Act, standards are authorized to be promulgated in three ways, 1) national consensus, 2) informal rulemaking (the most standard), and 3) emergency temporary standards. Many early OSHA standards were adapted from other areas of regulation, such as the National Electric Code (NEC) and American National Standards Institute (ANSI). The adoption promulgation method is no longer in effect.

The usual method of issuing, modifying, or revoking a new or existing OSHA standard is described in section 6(b) of the OSH Act and is known as “informal rulemaking.” This method requires that notices be provided to interested parties through subscription in the Federal Register, of the proposed regulation or standards, and allows the opportunity for comment in a nonadversarial, administrative hearing. The proposed standard can also be advertised through magazine articles and other publications, thus informing interested parties of the proposed standard and regulation. This method differs from the requirements of most other administrative agencies that follow the Administrative Procedure Act because the OSH Act provides interested parties the opportunity to request a public hearing with oral testimony. It also requires the secretary of labor to publish a notice of the time and place of such hearings in the Federal Register.

The most infrequent method for promulgating new standards is the use of emergency temporary standards permitted under section 6(c) [29 U.S.C 655(b)]. The secretary of labor may immediately establish a standard if it is determined that employees are subject to grave danger from exposure to substances or agents known to be toxic or physically harmful to the extent that a temporary standard would protect those workers. Emergency temporary standards become effective upon publication in the Federal Register and may remain in effect for six months. During this period, the secretary must adopt a new, permanent standard or abandon the emergency standard.

Only the secretary of labor can establish new OSHA standards; however, recommendations or requests for an OSHA standard can come from any interested party, including employees, employers, labor unions, environmental groups, and others. When the secretary receives a petition to adopt a new standard or to modify or revoke an existing standard, he or she usually forwards the request to NIOSH, and the National Advisory Committee on Occupational Safety and Health (NACOSH). Alternatively, the secretary may use a private organization such as ANSI for advice and review.

Reference:

Schneid, Thomas D. (2011) Legal liabilities in safety and loss prevention. Second edition. Jones and Bartlett Publishers. Sudbury, Massachusetts.