|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
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
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
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
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
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
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.