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Regulations (Preambles to Final Rules) - Table of Contents
• Record Type: Respiratory Protection
• Section: 2
• Title: Section 2 - II. Pertinent Legal Authority

II. Pertinent Legal Authority

The purpose of the Occupational Safety and Health Act, 29 U.S.C. 651 et seq. ("the Act") is to "assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources." 29 U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary of Labor to promulgate and enforce occupational safety and health standards. U.S.C. 655(a) (authorizing summary adoption of existing consensus and Federal standards within two years of Act's enactment), 655(b) (authorizing promulgation of standards pursuant to notice and comment), 654(b) (requiring employers to comply with OSHA standards).

A safety or health standard is a standard "which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment or places of employment." 29 U.S.C. 652(8).

A standard is reasonably necessary or appropriate within the meaning of section 652(8) if it substantially reduces or eliminates significant risk or prevents it from developing, and is economically feasible, technologically feasible, cost effective, consistent with prior Agency action or supported by a reasoned justification for departing from prior Agency actions, supported by substantial evidence, and is better able to effectuate the Act's purposes than any national consensus standard it supersedes. See 58 FR 16612-16616 (March 30, 1993).

A standard is technologically feasible if the protective measures it requires already exist, can be brought into existence with available technology, or can be created with technology that can reasonably be expected to be developed. American Textile Mfrs. Institute v. OSHA, 452 U.S. 490, 513 (1981) ("ATMI"), American Iron and Steel Institute v. OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991)("AISI").

A standard is economically feasible if industry can absorb or pass on the cost of compliance without threatening its long term profitability or competitive structure. See ATMI, 452 U.S. at 530 n. 55; AISI, 939 F. 2d at 980.

A standard is cost effective if the protective measures it requires are the least costly of the available alternatives that achieve the same level of protection. ATMI, 453 U.S. at 514 n. 32; International Union, UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994)("LOTO III").

All standards must be highly protective. See 58 FR 16614-16615; LOTO III, 37 F.3d at 668. However, standards regulating exposure to toxic substances or hazardous physical agents must also meet the "feasibility mandate" of Section 6(b)(5) of the Act, 29 U.S.C. 655(b)(5). Section 6(b)(5) requires OSHA to select "the most protective standard consistent with feasibility" that is needed to reduce significant risk when regulating these hazards. ATMI, 452 U.S. at 509.

Section 6(b)(5) also directs OSHA to base health standards on "the best available evidence," including research, demonstrations, and experiments, 29 U.S.C. 655(b)(5). OSHA shall consider "in addition to the attainment of the highest degree of health and safety protection * * * the latest scientific data * * * feasibility and experience gained under this and other health and safety laws." Id.

Section 6(b)(7) of the Act authorizes OSHA to include among a standard's requirements labeling, monitoring, medical testing and other information gathering and transmittal provisions. 29 U.S.C. 655(b)(7).

Finally, whenever practical, standards shall "be expressed in terms of objective criteria and of the performance desired." Id.

Respiratory protection is a backup method which is used to protect employees from toxic materials in the workplace in those situations where feasible engineering controls and work practices are not available, have not yet been implemented, are not in themselves sufficient to protect employee health, or in emergencies. The revisions to the respirator standard made in this rulemaking are intended to ensure that, when employers require employees to wear respirators to be protected from significant risk, protective respirators will be selected and those respirators will be used effectively to meet their design capabilities. Otherwise respirators will not reduce significant risk. The standard's provisions are designed to be feasible and cost effective, and are expressed in terms of objective criteria and the performance desired.

Further authority is provided by section 8(c)of the Act, which authorizes OSHA to require employers to maintain certain records. Section 8(g)(2) authorizes OSHA "to prescribe such rules and regulations as (it) may deem necessary to carry out its responsibilities under the Act."

[63 FR 1152, January 8, 1998]

Regulations (Preambles to Final Rules) - Table of Contents

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