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

II. Pertinent Legal Authority

A. Purpose

The primary purpose of the Occupational Safety and Health Act (the Act) (29 U.S.C. 655 et seq.) is to assure, so far as possible, safe and healthful working conditions for every American worker over the period of his or her working lifetime. One means prescribed by the Congress to achieve this goal is the mandate given to, and the concomitant authority vested in, the Secretary of Labor to set mandatory safety and health standards. The Congress specifically mandated that:

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 [Section 6(b)(5)].

B. Action Needed

The issuance of this final standard is authorized by sections 6(b), 8(c), and 8(g)(2) of the Occupational Safety and Health Act of 1970 (the Act), (84 Stat. 1593; 29 U.S.C. 655(b), 657(g)(2)). Section 6(b)(5) governs the issuance of occupational safety and health standards dealing with toxic materials or harmful physical agents. Section 3(8) defines an occupational safety and health standard as:

... 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 and places of employment.

The Supreme Court has held that under the Act the Secretary, before issuing any new standard, must determine that it is reasonably necessary and appropriate to remedy a significant risk of material health impairment. Industrial Union Department v. American Petroleum Institute, 448 U.S. 607 (1980). The court stated that "before he can promulgate any permanent health or safety standard, the Secretary is required to make a threshold finding that a place of employment is unsafe in the sense that significant risks are present and can be eliminated or lessened by a change in practices" (488 U.S. at 642). The Court also stated "that the Act does limit the Secretary's power to requiring the elimination of significant risks" (448 U.S. at 644, n. 49).

The court indicated, however, that the significant risk determination is "not a mathematical straitjacket," and that "OSHA is not required to support its finding that a significant risk exists with anything approaching scientific certainty." The court ruled that "a reviewing court [is] to give OSHA some leeway where its findings must be made on the frontiers of scientific knowledge...[and that] the Agency is free to use conservative assumptions in interpreting the data with respect to carcinogens, risking error on the side of overprotection rather than underprotection" (448 U.S. at 655, 656). The court also stated that "while that Agency must support its finding that a certain level of risk exists with substantial evidence, we recognize that its determination that a particular level of risk is 'significant' will be based largely on policy considerations." (448 U.S. at 655,656, n. 62).

After OSHA has determined that a significant risk exists and that such risk can be reduced by the proposed standard, it must set a 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" (Section 6(b)(5) of the Act). The Supreme Court has interpreted this section to mean that OSHA must enact the most protective standard possible to eliminate a significant risk of material health impairment, subject to the constraints of technological and economic feasibility. American Textile Manufacturers Institute, Inc. v Donovan, 452 U.S. 490 (1981). The court held that "cost-benefit analysis is not required by the statute because feasibility analysis is." (452 U.S. at 509). The Court stated that the Agency could use cost-effective analysis and choose the least costly of two equally effective standards. (452 U.S. 531, n. 32).

C. Regulation

Authority to issue this proposed standard is also found in section 8(c) and (g) of the Act. Section 8(c)(3) gives the secretary authority to require employers to "maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or measured under section 6." Section 8(g)(2) gives the Secretary authority to "prescribe such rules and regulations as he may deem necessary to carry out...[his] responsibilities under this Act."

In addition, the Secretary's responsibilities under the Act are amplified by its enumerated purposes, which include:

. . Encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions; ...

Authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to business affecting interstate commerce....

Building upon advances already made through employer and employee initiative for providing safe and healthful working conditions; ...

Providing for the development and promulgation of occupational safety and health standards; ...

Providing for appropriate reporting procedures with respect to occupational safety and health which procedures will help achieve the objectives of the Act and accurately describe the nature of the occupational safety and health problem; ...

Exploring ways to discover latent diseases; .... Establishing causal connections between diseases and work in environmental conditions....;

Encouraging joint labor - management efforts to reduce injuries and disease arising out of employment.... And... developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems....

Because the final cadmium standard is reasonably related to these statutory goals and because the Agency's judgment is that the evidence satisfies the statutory requirements and that the final standard is feasible and substantially reduces a significant risk of cancer and other adverse health effects, the Secretary finds that this standard is necessary and appropriate to carry out her responsibilities under the Act.

D. Information Collection Requirements

5 CFR Part 1320 sets forth procedures for agencies to follow in obtaining OMB clearance for information collection requirements under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. The final cadmium standard requires the employer to allow OSHA access to various records including the employers' compliance and training plans; and the employees' exposure monitoring, medical and training records. In accordance with the provisions of the Paperwork Reduction Act and the regulations issued pursuant thereto, OSHA certifies that it has submitted the information collection requirements of this standard to OMB for review under section 3504(h) of that Act.

Public reporting burden for this collection of information is estimated to average 5 minutes to allow OSHA compliance officers access to the employer's records. Send comments regarding this burden estimate, or any other aspect of this collection of information, including suggestions for reducing this burden, to the Office of Information Management, Department of Labor, room N-1301, 200 Constitution Ave., N.W., Washington, D.C., 20210; and to the Office of Management and Budget, Paperwork Reduction Project (Cadmium Standard), Washington, D.C., 20503.

E. Federalism

This final standard has been reviewed in accordance with Executive Order 12612, 52 FR 41685 (October 30, 1987), regarding Federalism. This Order requires that agencies, to the extent possible, refrain from limiting state policy options, consult with States prior to taking any actions that would restrict State policy options, and take such actions only when there is clear constitutional authority and the presence of a problem of national scope. The Order provides for preemption of State law only if there is a clear Congressional intent for the agency to do so. Any such preemption is to be limited to the extent possible.

Section 18 of the Occupational Safety and Health Act [OSH Act], expresses Congress' clear intent to preempt State laws with respect to which Federal OSHA has promulgated occupational safety or health standards. Under the OSH Act, a State can avoid preemption only if it submits and obtains Federal approval of a plan for the development of comparable State standards and their enforcement. Occupational safety and health standards developed by such Plan States must, among other things, be at least as effective as the Federal standards in providing safe and healthful employment and places of employment.

Those States which have elected to participate under Section 18 of the OSH Act would not be preempted by this regulation and would be able to deal with special, local conditions within the framework provided by this performance-oriented standard while ensuring that their standards are at least as effective as the Federal standard.

F. State Plans

The 25 states and territories with their own OSHA-approved occupational safety and health plans must revise their existing standards within six months of the publication date of this final standard. These states or territories are: Alaska, Arizona, California, Connecticut, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming. (In Connecticut and New York, the plan covers only State and local government employees.) Until such time as a state standard is promulgated, Federal OSHA will provide interim enforcement assistance, as appropriate.

[57 FR 42102, Sept. 14, 1992; 58 FR 21778, April 23, 1993]

Regulations (Preambles to Final Rules) - Table of Contents

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