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U.S. Code as of:
01/19/04
Section 655. Standards
(a) Promulgation by Secretary of national consensus standards and
established Federal standards; time for promulgation; conflicting
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.
(b) Procedure for promulgation, modification, or revocation of
standards
The Secretary may by rule promulgate, modify, or revoke any
occupational safety or health standard in the following manner:
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
(6)(A) 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.
(B) An application for a temporary order under this paragraph (6)
shall contain:
(i) a specification of the standard or portion thereof from
which the employer seeks a variance,
(ii) 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,
(iii) a statement of the steps he has taken and will take (with
specific dates) to protect employees against the hazard covered
by the standard,
(iv) 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
(v) 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.
(C) 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.
(7) 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.
(8) 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.
(c) Emergency temporary standards
(1) 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.
(2) Such standard shall be effective until superseded by a
standard promulgated in accordance with the procedures prescribed
in paragraph (3) of this subsection.
(3) Upon publication of such standard in the Federal Register the
Secretary shall commence a proceeding in accordance with subsection
(b) of this section, 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.
(d) Variances from standards; procedure
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.
(e) Statement of reasons for Secretary's determinations;
publication in Federal Register
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.
(f) Judicial review
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.
(g) Priority for establishment of standards
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.
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