On October 8, 1993, in response to the citizen petition requesting a permanent tuberculosis standard and an Emergency Temporary Standard,1 OSHA issued enforcement guidelines to protect workers exposed to tuberculosis based on the general-duty clause and the existing respiratory hazard and biohazard warning standards. OSHA initiated rulemaking proceedings for a specific standard to prevent occupational exposure to tuberculosis (Occupational Exposure to Tuberculosis, 1997).
Like all executive branch agencies, OSHA is limited in its power by the legislation creating it and by legal doctrines generally applicable to administrative agencies. These limitations constrain the process by which OSHA adopts a new standard, the content of the new standard, and even what it may undertake to regulate in the first instance. We turn now to an examination of these limitations. Whether or not OSHA successfully promulgates a new standard within these parameters is ultimately a question for reviewing courts, and the prospect of review has a strong influence on OSHA’s rulemaking work.
Under U.S. law, there are procedural requirements that all agencies engaged in rulemaking must observe (Administrative Procedure Act, 1994). These rules specify that an agency proposing to issue a regulation must give the public notice of its proposed action. Once this notice is provided, the agency must allow the public an opportunity to review and comment upon the proposed regulation. The agency may also be required to hold hearings to obtain further public input and to answer questions. Once the agency has completed obtaining all of the public input, it must consider and respond to the comments when it formulates the final regulations. Over time the implementation of certain executive orders and other acts of Congress have added more procedural steps for agencies making regulations.
Procedural requirements of the statute provide that a new OSHA standard shall be adopted according to the following procedure:
A notice of proposed rulemaking is placed in the Federal Register.
Interested parties have 30 days following publication of the notice to submit written data or comments. This is known as the comment period, and may be extended or reopened at the discretion of the agency.
Emergency temporary standards may be issued by OSHA to protect workers from “grave danger” and are effective for only 6 months; however, this power is only used in extraordinary circumstances as it allows OSHA to exert its authority without observing the procedural requirements detailed in this section.