OSHA Standards Development
OSHA can begin standards-setting procedures on its own initiative, or in response to petitions from other parties, including the Secretary of Health and Human Services (HHS); the National Institute for Occupational Safety and Health (NIOSH); state and local governments; any nationally-recognized standards-producing organization; employer or labor representatives; or any other interested person.
If OSHA determines that a specific standard is needed, any of several advisory committees may be called upon to develop specific recommendations. There are two standing committees, and ad hoc committees may be appointed to examine special areas of concern to OSHA. All Advisory committees, standing or ad hoc, must have members representing management, labor, and state agencies, as well as one or more designees of the Secretary of HHS. The two standing advisory committees are:
* National Advisory Committee on Occupational Safety and Health (NACOSH), which advises, consults with, and makes recommendations to the Secretary of HHS and to the Secretary of Labor on matters regarding administration of the Act.
* Advisory Committee on Construction Safety and Health, which advises the Secretary of Labor on formulation of construction safety and health standards and other regulations.
Recommendations for standards also may come from NIOSH, established by the Act as an agency of the Department of HHS.
NIOSH conducts research on various safety and health problems, provides technical assistance to OSHA and recommends standards for OSHA's adoption. While conducting its research, NIOSH may make workplace investigations, gather testimony from employers and employees and require that employers measure and report employee exposure to potentially hazardous materials. NIOSH also may require employers to provide medical examinations and tests to determine the incidence of occupational illness among employees. When such examinations and tests are required by NIOSH for research purposes, they may be paid for by NIOSH rather than the employer.
Once OSHA has developed plans to propose, amend or revoke a standard, it publishes these intentions in the Federal Register as a "Notice of Proposed Rulemaking," or often as an earlier "Advance Notice of Proposed Rulemaking." Prior to publication of proposed and final major rules OSHA consults with OMB under procedures established by Executive Order. OSHA consults with small business on proposed rules which significantly affect them through a panel with participation by the Small Business Administration and OMB, as required by theSmall Business Regulatory Enforcement and Fairness Act (SBREFA.)
An "Advance Notice" is used, when necessary, to solicit information that can be used in drafting a proposal. The Notice of Proposed Rulemaking will include the terms of the new rule and provide a specific time (at least 30 days from the date of publication, usually 60 days or more) for the public to respond.
Interested parties who submit written arguments and pertinent evidence may request a public hearing on the proposal when none has been announced in the notice. When such a hearing is requested, OSHA will schedule one, and will publish, in advance, the time and place for it in the Federal Register.
After the close of the comment period and public hearing, if one is held, OSHA must publish in the Federal Register the full, final text of any standard amended or adopted and the date it becomes effective, along with an explanation of the standard and the reasons for implementing it. OSHA may also publish a determination that no standard or amendment needs to be issued.
Emergency Temporary Standards
Under certain limited conditions, OSHA is authorized to set emergency temporary standards that take effect immediately and are in effect until superseded by a permanent standard. OSHA must determine that workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them. Then, OSHA publishes the emergency temporary standard in the Federal Register, where it also serves as a proposed permanent standard. It is then subject to the usual procedure for adopting a permanent standard except that a final ruling should be made within six months. The validity of an emergency temporary standard may be challenged in an appropriate U.S. Court of Appeals.
Appealing a Standard
No decision on a permanent standard is ever reached without due consideration of the arguments and data received from the public in written submissions and at hearings. Any person who may be adversely affected by a final or emergency standard, however, may file a petition (no later than the 59th day after the rule's promulgation) for judicial review of the standard with the U.S. Court of Appeals for the circuit in which the objector lives or has his or her principal place of business. Filing an appeals petition, however, will not delay the enforcement of a standard, unless the Court of Appeals specifically orders it.
Employers may ask OSHA for a variance from a standard or regulation if they cannot fully comply by the effective date, due to shortages of materials, equipment or professional or technical personnel (i.e., temporary variances), or can prove their facilities or methods of operation provide employee protection "at least as effective" as that required by OSHA (permanent variances).
Employers located in states with their own occupational safety and health programs should apply to the state for a variance. If however, an employer operates facilities in states under federal OSHA jurisdiction and also in state plan states, the employer may apply directly to federal OSHA for a single variance applicable to all the establishments in question. OSHA will then work with the state plan states involved to determine if a variance can be granted which will satisfy state as well as federal OSHA requirements.
A temporary variance may be granted to an employer who cannot comply with a standard or regulation by its effective date due to unavailability of professional or technical personnel, materials or equipment, or because the necessary construction or alternation of facilities cannot be completed in time.
Employers must demonstrate to OSHA that they are taking all available steps to safeguard employees in the meantime, and that the employer has put in force an effective program for coming into compliance with the standard or regulation as quickly as possible.
A temporary variance may be granted for the period needed to achieve compliance or for one year, whichever is shorter. It is renewable twice, each time for six months. An application for a temporary variance must identify the standard or portion of a standard from which the variance is requested and the reasons why the employer cannot comply with the standard. The employer must document those measures already taken and to be taken (including dates) to comply with the standard and establish that all available steps to safegaurd employees against the hazards covered by the standard are being taken.
The employer must certify that workers have been informed of the variance application, that a copy has been given to the employees' authorized representative, and that a summary of the application has been posted wherever notices are normally posted. Employees also must be informed that they have the right to request a hearing on the application
The temporary variance will not be granted to an employer who simply cannot afford to pay for the necessary alterations, equipment, or personnel.
A permanent variance (alternative to a particular requirement or standard may be granted to employers who prove their conditions, practices, means, methods, operations, or processes provide a safe and healthful workplace as effectively as would compliance with the standard.
In making a determination, OSHA weighs the employer's evidence and arranges a variance inspection and hearing where appropriate. If OSHA finds the request valid, it prescribes a permanent variance detailing the employer's specific exceptions and responsibilities under the ruling.
When applying for a permanent variance, the employer must inform employees of the application and of their right to request a hearing. Anytime after six months from the issuance of a permanent variance, the employer or employees may petition OSHA to modify or revoke it. OSHA also may do this of its own accord.
So that employers may continue to operate under existing conditions until a variance decision is made, they may apply to OSHA for an interim order. Application for an interim order may be made either at the same time as, or after, application for a variance. Reasons why the order should be granted may be included in the interim order application.
If OSHA denies the request, the employer is notified of the reason for denial.
If the interim order is granted, the employer and other concerned parties are informed of the order, and the terms of the order are published in the Federal Register (see p. 5 on how to obtain the Federal Register). The employer must inform employees of the order by giving a copy to the authorized employee representative add by posting a copy wherever notices are normally posted.
If an employer is participating in an experiment to demonstrate or validate new job safety and health techniques, and that experiment has been approved by either the Secretary of Labor or the Secretary of HHS, a variance may be granted to permit the experiment.
In addition to temporary, permanent, arid experimental variances, the Secretary of Labor also may find certain variances justified when the national defense is impaired. For further information and assistance in applying for a variance, contact the nearest OSHA office.
Variances are not retroactive. An employer who has been cited for a standards violation may not seek relief from the citation by applying for a variance. The fact that a citation is outstanding, however, does not prevent an employer from filing a variance application.
OSHA continually reviews its standards to keep pace with developing and changing industrial technology. Therefore, employers and employees should be aware that, just as they may petition OSHA for the development of standards, they also may petition OSHA for modification or revocation of standards.