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Regulations (Preambles to Final Rules) - Table of Contents
• Record Type: Safety Standards for Scaffolds Used in the Construction Industry
• Section: 6
• Title: Section 6 - VI. Pertinent Legal Authority

VI. 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. 29 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." 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, and is economically feasible, technologically feasible, cost effective, consistent with prior Agency action or a justified departure, supported by substantial evidence, and is better able to effectuate the Act's purposes than any national consensus standard it supersedes. See 58 Fed. Reg. 16612-16616 (March 30, 1993).

OSHA has generally considered, at minimum, a fatality risk of 1/1000 over a 45-year working lifetime to be a significant health risk. See the Benzene standard, Industrial Union Dep't v. American Petroleum Institute, 448 U.S. 607, 646 (1980); the Asbestos standard, Building and Constr. Trades Dep't, AFL-CIO v. Brock, 838 F.2d 1258, 1265 (D.C. Cir 1988); the Formaldehyde standard, International Union, UAW v. Pendergrass, 878 F.2d 389, 392 (D.C. Cir 1989).

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"); AISI v. OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991).

A standard is economically feasible if industry can absorb or pass on the costs 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").

Section 6(b)(7) 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).

All standards must be highly protective. See 58 Fed. Reg. at 16614-16615; LOTO III, 37 F.3d at 669. Finally, whenever practical, standards shall "be expressed in terms of objective criteria and of the performance desired." Id.

[61 FR 46026, Aug. 30, 1996]

Regulations (Preambles to Final Rules) - Table of Contents

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