29 U.S.C. § 655 — Standards
submitted 56 years ago by Pub. L. 91-596 to r/title-29-LABOR · 2,412 words · no verdicts yet
This section directs the Secretary of Labor to issue, change, or withdraw occupational safety and health standards through specified procedures. It covers emergency standards, temporary and permanent variances, warnings and medical monitoring, reasons for decisions, judicial review, and standard-setting priorities.
(a) National and Federal standards. During the first 2 years after this chapter became effective, the Secretary* must, as soon as practicable and without following chapter 5 of title 5 or the other subsections here, issue as an occupational safety or health standard each national-consensus or established Federal standard* unless doing so would not improve safety or health for the specifically identified employees. If standards conflict, the Secretary must issue the one giving the affected employees the greatest protection.
(b) Rulemaking. The Secretary may issue, change, or withdraw a standard as follows. (1) Based on written information from an interested person*, employer* or employee* organization, a recognized standards organization, the Secretary of Health and Human Services, NIOSH, a State* or political subdivision, or information the Secretary develops or otherwise has, the Secretary may decide a rule is needed and request an advisory committee’s recommendations. The Secretary must give the committee* relevant proposals and factual information. The committee must recommend a rule within 90 days of appointment, or another period set by the Secretary, never longer than 270 days. (2) The Secretary must publish the proposed rule in the Federal Register and allow 30 days for written data or comments. If a committee was appointed and the Secretary decides a rule should issue, publication must occur within 60 days after the recommendations or deadline. (3) By the last day for comments, an interested person may object in writing, state the reasons, and request a hearing. Within 30 days after objections are due, the Secretary must publish the standard challenged and the hearing time and place. (4) Within 60 days after comments close, or after a hearing ends, the Secretary must issue, change, or withdraw the standard or decide not to issue a rule. The rule may delay its effective date for up to 90 days so employers and employees can learn about it and employers can prepare. (5) For toxic materials or harmful physical agents, the Secretary must set the most protective feasible standard, based on the best available evidence, that prevents material impairment of health or functional capacity over a working life of regular exposure. The Secretary must consider research, demonstrations, experiments, current science, feasibility, and experience under this and other safety laws, and use objective criteria and desired performance when practicable. (6)(A) An employer may seek a temporary variance order. The employer must show it cannot comply by the effective date because needed professionals, technical staff, materials, equipment, construction, or facility changes are unavailable or incomplete; is taking every available step to protect employees; and has an effective plan to comply as quickly as practicable. The order must state the required practices and the compliance plan. Employees must receive notice and a hearing opportunity, although the Secretary may issue one interim order pending the decision. The order lasts no longer than the time needed for compliance or 1 year, whichever is shorter. It may be renewed no more than twice if the requirements continue and renewal is requested at least 90 days before expiration. An interim renewal may last no longer than 180 days. (B) The application must identify the standard, explain with qualified-person support why compliance is impossible, list completed and planned employee protections with dates, state expected compliance timing and steps with dates, and certify that employees were informed by giving the authorized representative a copy, posting a summary and where to inspect the application, and other appropriate means. It must describe how employees were informed and tell them they may petition for a hearing. (C) The Secretary may grant a variance when the Secretary determines, or Health and Human Services certifies, that it is needed for an approved experiment demonstrating or validating improved worker protections. (7) Standards must require labels or other warnings about all hazards, symptoms, emergency treatment, and safe-use conditions. When appropriate they must require protective equipment, controls, exposure monitoring, and employer-paid medical examinations or tests. Research examinations may be paid for by Health and Human Services. Results go only to the Secretaries and, at an employee’s request, the employee’s physician. After later experience or scientific or technological developments, the Secretary, consulting Health and Human Services, may modify these warning, monitoring, and examination requirements through section 553 rulemaking. (8) If a rule differs substantially from an existing national-consensus standard, the Secretary must publish the reasons why the adopted rule better serves this chapter.
(c) Emergency temporary standards. (1) Without chapter 5 of title 5, the Secretary must issue an emergency temporary standard effective immediately on Federal Register publication if employees face grave danger from toxic, physically harmful, or new hazards and the standard is needed to protect them. (2) It stays effective until replaced under paragraph (3). (3) On publication, the Secretary must begin subsection (b) proceedings, using the emergency standard as the proposed rule, and must issue the replacement standard within 6 months.
(d) Permanent variances. An affected employer may seek a variance rule or order. Affected employees must be notified and allowed to participate in a hearing. After an inspection when appropriate and a hearing, the Secretary must issue the variance if the applicant proves by a preponderance of the evidence that the employer’s conditions and methods will provide employment and workplaces as safe and healthful as compliance. The order must state the conditions and methods required instead of the standard. After 6 months, the employer, employees, or Secretary may seek modification or withdrawal using the issuance procedure.
(e) Reasons. Whenever the Secretary issues a standard, rule, order, decision, exemption, time extension, or compromise, reduction, or settlement of a penalty, the Secretary must include reasons and publish them in the Federal Register.
(f) Judicial review. A person who may be harmed by a standard may, before the 60th day after it is issued, petition the court of appeals for the circuit where the person lives or has a principal business for review. The clerk must promptly send the petition to the Secretary. Filing does not stay the standard unless the court orders otherwise. The Secretary’s findings are conclusive if supported by substantial evidence in the whole record.
(g) Priorities. When setting priorities, the Secretary must consider the urgency of mandatory safety and health standards for particular industries, trades, crafts, occupations, businesses, workplaces, or work environments, and the Health and Human Services Secretary’s recommendations about the need for such standards.
Without regard to chapter 5 of title 5 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 chapter 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.
The Secretary may by rule promulgate, modify, or revoke any occupational safety or health standard in the following manner:
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 chapter, the Secretary may request the recommendations of an advisory committee* appointed under section 656 of this title. 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.
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.
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 therefor 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.
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.
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.
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 compliance with the standard or one year, whichever is shorter, except that such an order may be renewed not more than 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.
An application for a temporary order under this paragraph (6) shall contain:
a specification of the standard or portion thereof from which the employer seeks a variance,
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,
a statement of the steps he has taken and will take (with specific dates) to protect employees against the hazard covered by the standard,
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
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.
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.
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, 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.
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 chapter than the national consensus standard.
The Secretary shall provide, without regard to the requirements of chapter 5 of title 5, 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.
Such standard shall be effective until superseded by a standard promulgated in accordance with the procedures prescribed in paragraph (3) of this subsection.
Upon publication of such standard in the Federal Register the Secretary shall commence a proceeding in accordance with subsection (b), 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.
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.
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 chapter, he shall include a statement of the reasons for such action, which shall be published in the Federal Register.
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.
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.
Source credit: (Pub. L. 91–596, § 6, Dec. 29, 1970, 84 Stat. 1593; Pub. L. 96–88, title V, § 509(b), Oct. 17, 1979, 93 Stat. 695.)
- 1970Enacted · Pub. L. 91-596 · 84 Stat. 1593
- 1979Amended · Pub. L. 96-88 · 93 Stat. 695
A history note hasn’t been published yet. The record shows enactment by Pub. L. 91-596 on 1970-12-29.
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