Application — Women of Color For Equal Justice, et al. Applicants v. City of New York, New York, et al.
Supreme Court briefApr 19, 2023
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No. 23-A
In The
Supreme Court of the United States
WOMEN OF COLOR FOR EQUAL JUSTICE, ET AL.
Applicant,
v.
MAYOR ERIC L. ADAMS, COMMISSIONER ASHWIN VASAN,
MD, PHD, IN THEIR OFFICIAL CAPITY, THE CITY OF NEW YORK,
DEPARTMENT OF HEALTH AND MENTAL HYGIENE AND
DEPARTMENT OF EDUCATION, DOES 1-20
Respondent.
APPENDIX TO
EMERGENCY APPLICATION FOR STAY PENDING APPELLATE REVIEW
OR, IN THE ALTERNATIVE, PETITION FOR WRIT OF CERTIORARI AND
STAY PENDING RESOLUTION
IMMEDIATE RELIEF REQUESTED
To the Honorable Sonia Sotomayor
Associate Justice of the United
States Supreme Court and
Circuit Justice for the Second Circuit
Dated: April 19, 2022
Jo Saint-George
Counsel of Record
14216 Dunwood Valley Dr.
Bowie, MD 20721
(602) 326-8663
jo@woc4equaljustice.org
Counsel for Applicant
APPEDIX
#
INDEX TO APPENDIX
Bates
Page #
Orders
A.
November 18, 2022 – Order of U.S. District Court
Eastern District of New York
006
B
February 15, 2023 – Second Circuit Order Denying
Preliminary Injunctive and Declaratory Relief
018
Supporting Documents
1.
World Health Organization (WHO) Emergency
Declaration of Covid-19 Pandemic
020
2.
CDC Scientific Brief – SARS CoV2 Transmission
024
3.
OSHA Regulations – only sections cited –
030
§1910.132-134 – Respiratory Regs,
§1910.9 – Personal Protective Equipment
Section 5 – General Duty Clause
4.
1789 Marine Hospital - Public Health Services CDC Archive
041
5.
1944 Public Health & Welfare Act + (a) & (b) Current
PHWA
044
6.
1902 Act to Regulation of the Sale Viruses
070
7.
1970 OSH Act – entire statute highlighted -cited
sections and clauses highlighted –
074
29 USC 652 §3 (8) - Standards Definition
29 USC 654 §5 (a) – Duties of Employers
29 USC 655 §6(b) – Secretary Authority
29 USC 667 §18(a)(b) – State Plans
29 USC 669 §20 (a)(5) – Auto Religious
Exemptions
29 USC 660 §11(c) – Right of Action
7.(a)
099
8.
OSHA Regulation – 29 CFR 1977 – Section 11(c) Right
of Action
1979 OSHA Ventilation Regulation CFR 1926.57
9.
OSHA Air Purification Alert
115
10.
1972 Communicable Disease Control Program
117
11.
2009 WHO Declares H1N1 Global Pandemic
125
12.
NIOSHA & CDC Respiratory Hospital Toolkit – 2015
129
13.
Expert Affidavit of OSHA Expert Hygienist – Bruce
Miller
152
14.
Expert Affidavit Dr. Baxter Montgomery, MD
207
15.
OSHA & CDC K-12 Guidelines – 2020 – Respiratory
Standard & Remote Work
235
16.
New York State Plan OSHA Website Homepage and NY
Website
243
17.
Ford Motor Company Press Release April 13, 2020
252
18.
Report from New York City Independent Budget Office
– May 2020 -Federal Funding to the City
259
19.
OSHA/Department of Labor Response to Emergency
Petition from AFLCIO – ETS Not Necessary
271
20.
OSHA June 2021 ETS – no vaccine mandate only
instructions for “vaccine access”
275
111
21.
NY City Department of Health – Marketing Flyer –
277
FAQ
22.
City & Union Agreements re: Deprivation of Union
Employee Religious Exemption
280
23.
NLRB Prohibited Collective Bargaining Law
294
24.
24(a)– (i) – Nine (9) Vaccine Orders
297
(a) NYCDOH Order 8-24-2021 Covid-19 Mandate for DOE
– Employees, Contractors & Others
(b) NYCDOH Order 9-12-2021 Covid-19 Mandate for Child
Care Workers
(c) NYCDOH Order 9-15-2021 Covid-19 Repeal & Restate
for DOE – Employees, Contractors & Others
(d) NYCDOH Order 9-28-2021 Covid-19 Revision of DOE
Effective Date Requirement
(e) NYCDOH Order 10-20-2021 Covid-19 Mandate for City
Workers & Certain City Contractors
(f) NYCDOH Order 10-21-2021 Covid-19 Supplemental
Mandate Certain City Contractor
(g) NYCDOH Order 11-15-2021 Covid-19 Mandate for
Child Care & Early Intervention Program Workers
(h) NYCDOH Order 12-2-2021 Covid-19 Mandate for
Private School Staff
(i) NYCDOH Order 12-13-2021 Covid-19 Mandate –
Private Employer Workplaces & Staff
(j) City email to employee mandating Covid-19 vaccination
as a condition of employment and demand to waive any
future damages claims to keep health insurance while on
leave without pay
25.
Plaintiff Affidavit – R. Dello Ioio
340
26.
Plaintiff Affidavit – E. Loiacono
358
27.
Plaintiff Affidavit – A. Bryan
380
28.
Plaintiff Affidavit – J. Harding
401
29.
Plaintiff Affidavit – A. Ustares
408
30.
Plaintiff Affidavit – S. Coombs Moreno
413
31.
Plaintiff Affidavit – S. Browne
426
32.
Plaintiff Affidavit – Z. Robinson Wouadjou
440
33.
Plaintiff Affidavit – T. Martin
467
34.
Plaintiff Affidavit – B. Reid
517
35.
Plaintiff Affidavit – J. Rullo
522
36.
Plaintiff Affidavit – J. Coombs
526
37.
CDC Report on Chronic Disease and Covid-19 Severity
& Death
533
38.
NYC Legal Department Memo re: Application of EEOC
Undue Hardship Standard
542
39.
Harassing Letters from Various City Agencies Dated
August 22, 2021, & Letters from June 2022
546
40.
New York Times Nov. 1, 2021, Article re Number of
City Employees Placed on Leave
560
41.
Feb. 6, 2023 - Amended NYC Vaccine Order
563
42.
Feb. 8, 2023 – Amended NYC Vaccine Orders
570
43.
Feb 10, 2023 – Transcript of Mayor Adams –
statements regarding no backpay & reinstatement of
Vaccine Orders
576
44.
Feb 2023 – New York Post Article re 450 Teachers
582
Vaxxed from City Coercion
45.
Garvey v. NY City Lawsuit – excerpt
585
46.
City of New York, et al – Motion to Dismiss
595
47.
Notice of Claims with Letter & Receipt of E-Service
602
Bates006
Appendix A
Case 1:22-cv-02234-EK-LB Document 39 Filed 11/18/22 Page 1 of 11 PageID #: 2163
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
WOMEN OF COLOR FOR EQUAL JUSTICE et
al.,
MEMORANDUM & ORDER
22-CV-2234(EK)(LB)
Plaintiffs,
-againstTHE CITY OF NEW YORK et al.,
Defendants.
------------------------------------x
ERIC KOMITEE, United States District Judge:
The plaintiffs here — an organization called Women of
Color for Equal Justice and a number of current and former
employees of the City of New York — filed this lawsuit against
the City, its Mayor and Commissioner of Public Health, and its
Departments of Education and of Health and Mental Hygiene.
Plaintiffs challenge the City’s orders requiring certain
employees to obtain a COVID-19 vaccine.
They have applied for a
preliminary injunction enjoining the City from enforcing those
requirements.
Because Plaintiffs have failed to show a
sufficient likelihood on the merits, those applications are
denied.1
1
In denying the applications, the Court expresses no view on whether
Women of Color for Equal Justice has organizational standing to participate
in this lawsuit. Defendants have indicated that they intend to raise this
issue in their forthcoming motion to dismiss. Defs.’ PMC Request 3, ECF No.
13. Where the standing issue may “raise[] difficult issues, it need not
detain the court on this expedited application for a preliminary injunction.”
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I.
Background
Between August and December 2021, in response to the
COVID-19 pandemic, the New York City Commissioner of Health and
Mental Hygiene issued a series of nine orders requiring certain
individuals to be vaccinated against COVID-19.
ECF Nos. 17-19 to 17-27.
Vaccine Orders,
These included employees and
contractors of the New York City Department of Education, other
City employees and contractors, childcare workers, nonpublic
school staff, and employees of private businesses.
Id.2
Plaintiffs are employees or former employees of
various City agencies who allege they lost their jobs or were
placed on unpaid leave for refusing the COVID-19 vaccine, or who
were “coerced” into becoming vaccinated.
¶¶ 13–39, ECF No. 22.
Third Am. Compl. (TAC)
They filed this lawsuit alleging that the
Vaccine Orders violate the Occupational Health and Safety Act of
1970 (OSHA), 29 U.S.C. §§ 651–678; the Supremacy Clause; the
Fulani v. League of Women Voters Educ. Fund, 684 F. Supp. 1185, 1194
(S.D.N.Y. 1988), aff’d, 882 F.2d 621 (2d Cir. 1989); see also All. for Env’t
Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 85, 87 (2d Cir. 2006)
(Supreme Court’s “ruling that a district court must generally . . . establish
that it has federal constitutional jurisdiction, including a determination
that the plaintiff has Article III standing, before deciding a case on the
merits,” “seeks to guard only against a definitive ruling on the merits by a
court that lacks jurisdiction because of the absence of an Article III
requirement”).
2
The City subsequently lifted the Vaccine Order for private-sector
employees effective November 1, 2022. See City of New York, Transcript:
Mayor Eric Adams Launches COVID-19 Booster Campaign, Announces Additional
Flexibility for NYC Businesses, Parents (Sept. 20, 2022), https://www.nyc.
gov/office-of-the-mayor/news/688-22/transcript-mayor-eric-adams-launchescovid-19-booster-campaign-additional-flexibility.
2
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First Amendment; and New York City law.
Id. ¶¶ 88–188.
They
seek declaratory and injunctive relief and monetary damages.
Id. ¶¶ 189–91.
On September 2, 2022, Plaintiffs filed a motion for a
temporary restraining order (TRO) and a preliminary injunction.
Pls.’ Mot. for TRO & Prelim. Inj. (“Pls.’ 1st Appl.”), ECF No.
17.
I denied the TRO on September 14, 2022.
Plaintiffs then
filed a second motion for a TRO and a preliminary injunction on
October 26, 2022, this time packaged with a motion for class
certification.
Pls.’ Renewed Mot. for TRO, Prelim. Inj. &
Prelim./Conditional Class Certification (“Pls.’ 2d Appl.”), ECF
No. 33.
2022.
I denied the second TRO application on November 15,
Memorandum & Order, ECF No. 37.
Plaintiffs subsequently
filed a motion seeking leave to amend its application for a
preliminary injunction:
to drop the request for injunctive relief pursuant to
FRCP §65 and to make clear that Plaintiffs are not
seeking a “cause of action” under the OSH Act, but
rather Plaintiffs seek Declaratory and Injunctive
Relief pursuant to FRCP §57 under 28 U.S.C. § 2201 and
§2202, which authorizes this Court to award as a final
judgment a declaration of rights and obligations
between the Plaintiffs and [Defendants] and to issue
an injunction pursuant to 28 U.S.C. §2202 . . . .
Pls.’ Request for Leave to Amend Motion 1 (all typographical
errors in original), ECF No. 38.
3
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II.
Legal Standards
A party seeking a preliminary injunction must
demonstrate (1) “a likelihood of success on the merits”; (2) “a
likelihood of irreparable injury in the absence of an
injunction”; (3) “that the balance of hardships tips in the
plaintiff’s favor”; and (4) “that the public interest would not
be disserved by the issuance of an injunction.”
Benihana, Inc
v. Benihana of Tokyo, LLC, 784 F.3d 887, 895 (2d Cir. 2015).3
Where a preliminary injunction would alter the status quo, a
heightened standard applies: the party seeking it must show “a
clear or substantial likelihood of success on the merits.”
N.
Am. Soccer League, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d 32,
36-37 (2d Cir. 2018).
For the reasons discussed below,
Plaintiffs have failed to demonstrate the requisite likelihood
of success under either standard.
III.
Discussion
Plaintiffs’ applications for a preliminary injunction,
as they currently stand, are premised on the theories that the
Vaccine Orders violate (1) the Supremacy Clause of the U.S.
Constitution and OSHA; and (2) New York Public Health Law § 206.
See Pls.’ 1st Appl. 4–5; Pls.’ 2d Appl. 2–4.
Both arguments are
3 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
4
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meritless.
Additionally, Plaintiffs’ motion for leave to amend
their preliminary injunction papers is denied because such
amendment would be futile.
A.
Plaintiffs’ Applications for a Preliminary Injunction Are
Denied
1.
Neither the Supremacy Clause Nor the OSHA Act Provides
a Private Right of Action
Plaintiffs rely first on the Supremacy Clause and
OSHA, which they argue are inconsistent with, and preempt, the
Vaccine Orders.
Pls.’ 1st Appl. 4–5; Pls.’ 2d Appl. 2–4.
But
the Supremacy Clause does not provide a private right of action.
See Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320,
324–25 (2015) (“It is . . . apparent that the Supremacy Clause
is not the source of any federal rights and certainly does not
create a cause of action.”).
Additionally, Plaintiffs have not shown that a private
right of action exists to sue under OSHA.
“Under OSHA,
employees do not have a private right of action.”
Donovan v.
Occupational Safety & Health Rev. Comm’n, 713 F.2d 918, 926 (2d
Cir. 1983).
The Second Circuit has explained that “it is
apparent from [OSHA’s] detailed statutory scheme that the public
rights created by the Act are to be protected by the Secretary
and that enforcement of the Act is the sole responsibility of
the Secretary.”
Id. at 927.
Relying on that holding, a
district court of the Southern District of New York recently
5
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rejected a state employee’s claims that his employer failed to
implement adequate COVID-19 safety protocols under the OSHA Act.
See Quirk v. DiFiore, 582 F. Supp. 3d 109, 115 (S.D.N.Y. 2022)
(citing Donovan, 713 F.2d at 926) (“The last of Quirk’s federal
law claims are for violations of OSHA regulations; these claims
all fail because Quirk cannot bring a lawsuit under OSHA.”).
Because no private right of action exists under either
provision, the application for preliminary injunctive relief on
this ground is denied.
See Joint Apprenticeship & Training
Council of Loc. 363, Int’l Bhd. of Teamsters, & United Const.
Contractors Ass’n v. N.Y. State Dep’t of Lab., 829 F. Supp. 101,
104–05 (S.D.N.Y. 1993) (denying application for preliminary
injunction where no private right of action existed under the
relevant statute).
2.
The Vaccine Orders Do Not Violate New York Public Law
Section 206
Nor have Plaintiffs shown a likelihood of success on
their argument that the Vaccine Orders violate New York Public
Health Law § 206(1)(l).
Pls. 2d Appl. 2.
That statute provides
that the Commissioner of Health of the State of New York
“shall”:
establish and operate such adult and child
immunization programs as are necessary to prevent or
minimize the spread of disease and to protect the
public health. Such programs may include the purchase
and distribution of vaccines to providers and
municipalities, the operation of public immunization
6
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programs, quality assurance for immunization related
activities and other immunization related activities.
The commissioner may promulgate such regulations as
are necessary for the implementation of this
paragraph. Nothing in this paragraph shall authorize
mandatory immunization of adults or children, except
as provided in [N.Y. Public Health Law §§ 2164–2165].
N.Y. Public Health Law § 206(1)(l).
Although their papers in
support of their applications for an injunction are sparse on
the subject, the Complaint contains the assertion that this
section “prohibits the [Commissioner] from establishing
regulations that mandate adult vaccination.”
TAC ¶ 70(c).
But the prohibition in the last sentence of Section
206(1)(l) applies only to “this paragraph” — i.e., to Section
206(1)(l) itself.
Plaintiffs do not contend (and certainly have
not shown) that the Vaccine Orders were issued under the
authority of Section 206(1)(l).
On the contrary, the Orders
themselves cite the City’s Charter and Health Code as authority
for their issuance.
For example, the August 24, 2021 order
invokes (among other provisions) Section 3.01(d) of the New York
City Health Code, which grants the City’s Department of Health
and Mental Hygiene the power to “issue necessary orders and take
such actions as may be necessary for the health or the safety of
the City and its residents” during a public health emergency.
N.Y.C. Health Code § 3.01(d) (codified in Title 24 of the Rules
of the City of New York).
See August 24, 2021 Vaccine Order 1,
ECF No. 17-19.
7
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Thus, Section 206 is not relevant to the legality of
those Orders.
See Marciano v. de Blasio, 589 F. Supp. 3d 423,
434 (S.D.N.Y. 2022) (“[A]s the [New York] Court of Appeals
explained in Garcia [v. N.Y.C. Dep’t of Health & Mental Hygiene,
106 N.E.3d 1187 (2018)], [Section 206(1)(l)] [is] directed to
the powers and duties of the Commissioner of the New York State
Department of Health and in no way limit[s] the New York City
Department or its Commissioner from issuing separate and
independent vaccine requirements.”); see also C.F. v. New York
City Dep’t of Health & Mental Hygiene, 139 N.Y.S.3d 273, 282,
284 (App. Div. 2d Dep’t 2020) (holding that a City order
mandating vaccination against measles did not exceed the City’s
authority, and observing that Section 206(1)(l) is “directed to
the powers and duties of the Commissioner of the State
Department of Health, not of the New York City Board,” and
accordingly does not “restrict the Board’s authority to regulate
vaccinations”).
Therefore, Plaintiffs’ request for injunctive
relief is denied on this ground as well.4
4
To the extent Plaintiffs seek to make out a claim under the Free
Exercise Clause on the basis that the Vaccine Orders “are not laws of
‘general applicability,’” Pls.’ 2d Appl. 3, the Second Circuit has already
considered and rejected that argument. See Kane v. De Blasio, 19 F.4th 152,
164 (2d Cir. 2021) (“The Vaccine Mandate, in all its iterations, is neutral
and generally applicable.”).
8
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B.
Plaintiffs’ Motion for Leave to Amend Their Application for
a Preliminary Injunction Is Denied
As noted above, Plaintiffs’ most recent filing states
their wish “to make clear” that they are seeking declaratory and
injunctive relief pursuant to Federal Rule of Civil Procedure 57
and 28 U.S.C. §§ 2201–2202, rather than OSHA itself.
But “a
request for relief in the form of a declaratory judgment does
not by itself establish a case or controversy involving an
adjudication of rights.”
In re Joint E. & S. Dist. Asbestos
Litig., 14 F.3d 726, 731 (2d Cir. 1993).
As the Second Circuit
explained:
The Declaratory Judgment Act does not expand
jurisdiction. Nor does it provide an independent
cause of action. Its operation is procedural only —
to provide a form of relief previously unavailable.
Therefore, a court may only enter a declaratory
judgment in favor of a party who has a substantive
claim of right to such relief.
Id.; see also Chiste v. Hotels.com L.P., 756 F. Supp. 2d 382,
406 (S.D.N.Y. 2010) (“Declaratory judgments and injunctions are
remedies, not causes of action.”).
such amendment would be futile.
Thus, even if permitted,
See Ruffolo v. Oppenheimer &
Co., 987 F.2d 129, 131 (2d Cir. 1993) (even in the context of
amending pleadings, “[w]here it appears that granting leave to
amend is unlikely to be productive . . . , it is not an abuse of
discretion to deny leave to amend”).
To the extent Plaintiffs
seek declaratory relief, that relief will be granted, if at all,
9
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only at the conclusion of the litigation process.
See B. Braun
Med., Inc. v. Abbott Lab’ys, 124 F.3d 1419, 1428 (Fed. Cir.
1997) (“Given that the [Declaratory Judgment] Act merely
provides a new noncoercive remedy, it should come as no surprise
that the practice in declaratory judgment actions is, on almost
every point, the same as in any civil action.”).5
IV.
Conclusion
For these reasons, Plaintiffs’ applications for a
preliminary injunction are denied, and their request for leave
to amend their preliminary injunction papers is denied.
Plaintiffs are warned that any further requests for emergency or
preliminary relief premised on issues that the Court has already
decided will expose them to sanctions for engaging in vexatious
litigation.
5 See also 10B Charles A. Wright & Arthur R. Miller, Federal Practice &
Procedure § 2768, Westlaw (4th ed. Apr. 2022 Update) (“Any doubt or
difficulty about the procedure in actions for a declaratory judgment
disappears if the action is regarded as an ordinary civil action, as Rule 57
clearly intends. . . . As Rule 57 expressly provides, the procedure for
obtaining a declaratory judgment must be in accordance with the federal
rules. . . . [T]he practice in [declaratory judgment] actions is, on almost
every point, the same as in any civil action.”).
10
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The Court will reserve decision on the pending motion
for class certification.
A briefing schedule for Defendants’
motion to dismiss will be set by separate order.
SO ORDERED.
/s/ Eric Komitee__________
ERIC KOMITEE
United States District Judge
Dated:
November 18, 2022
Brooklyn, New York
11
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Appendix B
Case 1:22-cv-02234-EK-LB Document 45 Filed 02/15/23 Page 1 of 1 PageID #: 2185
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
15th day of February, two thousand twenty-three.
Before:
Joseph F. Bianco,
Circuit Judge.
________________________________
Women of Color For Equal Justice, et al.,
Plaintiffs - Appellants,
v.
ORDER
Docket No. 22-3065
City of New York, Eric L. Adams, New York
City Department of Health and Mental
Hygiene, Ashwin Vasan, MD, PhD,
Commissioner of the Department of Health
and Mental, Does 1-20, New York City
Department of Education,
Defendants - Appellees.
___
relief.
Appellants move to expedite the appeal and for emergency injunctive and declaratory
IT IS HEREBY ORDERED that, to the extent the motion seeks temporary relief pending
review by a three-Judge panel, the motion is DENIED. The motion is REFERRED to a threeJudge motions panel.
For the Court:
Catherine O’Hagan Wolfe,
Clerk of Court
CERTIFIED COPY ISSUED ON 02/15/2023
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Appendix #1
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Appendix #2
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Appendix #3
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The primary routes of infectious disease transmission in U.S. healthcare settings are contact, droplet, and
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provides protection of workers from exposures to blood and body fluids that may contain bloodborne
infectious agents; OSHA's Persona
Protective Equipment standard (29 CFR 1 9 1 0 . 1 3 2 ) and Respiratory
Protection standard (29 CFR 1 9 1 0 . 1 3 4 ) which provide protection for workers when exposed to contact,
droplet and airborne transmissible infectious agents; and OSHA's T
B compliance directive which protects
Bates032
workers against exposure to TB through enforcement of existing applicable OSHA standards and the
General Duty Clause of the OSH Act.
CDC Guidelines
Below is an abbreviated list of CDC resources available to assist HCWs in assessing and reducing their
risks for occupational exposure to infectious diseases.
Hand Hygiene in Healthcare Settings. This web page provides HCWs and patients with a variety of
resources including gu del nes for providers, patient empowerment materials, the latest technological
advances in hand hygiene adherence measurement, frequently asked questions, and links to
promotional and educational tools published by the World Health Organization (WHO), universities,
and health departments.
Guide to Infection Prevention for Outpatient Settings: Minimum Expectations for Safe Care. This
document is a summary guide of infection prevention recommendations for outpatient (ambulatory
care) settings.
Infection Control: Guideline for Dis nfection and Sterilization in Healthcare Facilities. Includes a link to a
document (Guideline for Disinfection and Sterilization in Healthcare Facilities) that presents evidence
based recommendations on the preferred methods for cleaning, disinfection and sterilization of patient
care medical devices and for cleaning and disinfecting the healthcare environment. This document
supersedes the relevant sections contained in the 1985 Centers for Disease Control and Prevention
(CDC) Guideline for Handwashing and Environmental Control.
Isolation Precautions. Includes a link to a document
Transmission of Infectious Agents in Healthcare
(Guideline for Isolation Precautions: Preventing
Settings) intended for use by
nfection control (IC)
staff, healthcare epidemiologists, healthcare administrators, nurses, other healthcare providers, and
persons responsible for developing, imp ementing, and evaluating IC programs for healthcare settings
across the continuum of care.
Multidrug-resistant organisms Management. All healthcare settings are affected by the emergence and
transmission of antimicrobial-resistant microbes. Provides information for the prevention of
transmission of Multidrug Resistant Organisms (MDROs).
Guidelines for Environmental Infection Control in Health-Care Facilities. (June 6, 2003). This web page
provides guidelines, recommendations and strategies for preventing environment-associated infections
in healthcare facilities.
Guideline for Infection Control in Health Care Personnel, 1998. These guidelines address infection
control procedures to protect workers from occupationa
exposure to infectious agents.
Healthcare Workers. National Institute for Occupational Safety and Health (NIOSH) Workplace Safety
and Health Topic. Healthcare is the fastest-growing sector of the U.S. economy, employing over 18
million workers. Women represent nearly 80% of this work force. Healthcare workers face a wide range
of hazards on the job, including needlestick injuries, back injuries, latex allergy, violence, and stress.
Eye Safety- Eye Protection for
nfection Control. National Institute for Occupational Safety and Health
(NIOSH) Workplace Safety and Health Topic. NIOSH recommends eye protection for a variety of
potential exposure settings where workers may be at risk of acquiring infectious diseases via ocular
exposure.
Specific Diseases
Bloodbome Pathogens
Bloodborne Pathogens and Needlestick Injuries. OSHA Safety and Health
Topics Page.
Cylomegalovirus (CMV)
•
Cytomegalovirus (CMV). OSHA Safety and Health Topics Page.
Ebola
•
Ebola. OSHA Safety and Health Topics Page.
Seasonal Flu
•
Seasonal Flu. OSHA Safety and Health Topics Page.
Pandemic Flu
•
Pandemic Influenza
OSHA Safety and Health Topics Page.
Measles
•
Measles. OSHA Safety and Health Topics Page.
MERS
•
MERS. OSHA Safety and Health Topics Page.
MRSA
Methicillin-resistant Staphylococcus Aureus (MRSA) Infections. Centers for Disease Control and
Prevention (CDC). Methicillin-resistant Staphylococcus Aureus (MRSA) is a type of staph bacteria that
is resistant to certain antibiotics which include methicillin and other more common antibiotics such as
oxacillin, penicillin, and amoxicillin. This web site has links to numerous other web sites that provide
information for protection of healthcare workers from MRSA infections.
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MDRO - Multidrug-Resistant Organisms - MRSA. OSHA. This is the Methicillin-resistant
Staphylococcus aureus (MRSA) portion of the multi-drug resistant organism module of OSHA's
Hospitals elool. This electronic aid provides information to help stop the spread of MRSA among
employees and others working in healthcare and other industries. Your local public health agency has
information on what your community is doing to prevent the spread of MRSA.
Norovirus
A Norovirus Outbreak Control Resource Toolkit for Healthcare Settings. Centers for Disease Control
and Prevention (CDC). Because of high levels of contact and vulnerable patient populat ons,
healthcare settings can be particularly susceptible to outbreaks of norovirus. T
o help address the
challenges of managing and controlling norovirus gastroenteritis outbreaks in healthcare settings, the
CDC offers a toolkit for healthcare professionals including up-to-date information, recommended
infection control measures, and tools for outbreak response coordination and reporting.
Norov ruses. (May 2008). OSHA Fact Sheet. Although noroviruses are currently more of a concern to
the general public than to workers, the increasing incidence of norovirus outbreaks exposes many
different worker groups, especially healthcare workers (HCWs).
SARS
•
Information Regarding Severe Acute Respiratory Syndrome (SARS). OSHA.
Tuberculosis
•
Tuberculosis. OSHA Safety and Health Topics Page.
Zika
•
Zika. OSHA Safety and Health Topics Page.
Additional Biological Agents
•
Biological Agents. OSHA Safety and Health Topics Page.
State Legislation
California Code of Regulations, Title 8, Section 5199. Aerosol Transmissible Diseases. Cal-OSHA's
ATD standard protects laboratory workers, as well as, healthcare workers, emergency responders, and
many others from exposure to droplet and airborne transmissib e diseases when engaged in the
performance of their duties.
Workers' Rights
>
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Bates034
r,\ U N I T E D STATES
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1 9 1 0 . 9 - Compliance duties owed to each employee.
•
Part Number:
1910
•
Part Number Tiiie:
Occupational Safety and Health Standards
•
Subpart:
1 9 1 0 Subpart A
•
Subpart Title:
General
•
Standard Number:
1910.9
•
Title:
Compliance duties owed to each employee.
•
GPO Source:
eCFR
1910.9(a)
Personal protective equipment.
Standards in this part requiring the employer to provide personal protective equipment (PPE), including
respirators and other types of PPE, because of hazards to employees impose a separate compliance duty with respect to each employee covered
by the requirement. The employer must provide PPE to each employee required to use the PPE, and each failure to provide PPE to an employee
may be considered a separate violation.
1910.9(b)
Training.
Standards in this part requiring training on hazards and related matters, such as standards requiring that employees receive training or
that the employer train employees, provide training to employees, or institute or implement a training program, impose a separate compliance duty
with respect to each employee covered by the requirement. The employer must train each affected employee in the manner required by the
standard, and each failure to train an employee may be considered a separate violation.
[73 FR 75583, Dec. 1 2 , 2008)
� U N I T E D STATES
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Bates035
r,\ U N I T E D STATES
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1 9 1 0 . 1 3 2 - General requirements.
Part Number:
1910
Part Number Tiiie:
Occupational Safety and Health Standards
Subpart:
1 9 1 0 Subpart
Subpart Title:
Personal Protective Equipment
Standard Number:
1910.132
Title:
General requirements.
GPO Source:
e-CFR
1910.132(a)
Appl/cation. Protective equipment, including personal protective equipment for eyes face, head, and extremities, protective clothing, respiratory
devices, and protective shields and barriers, shall be provided, used, and maintained in a san tary and reliable condition wherever t is necessary
by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner
capab e of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.
1910.132(b)
Employee-owned equipment. Where employees provide their own protective equipment, the employer shall be responsible to assure its
adequacy, including proper maintenance, and sanitation of such equipment.
1910.132(c)
Design. All personal protective equipment shall be of safe design and construction for the work to be performed.
1910.132(d)
Hazard assessment and equipment se/eclion.
1910.132(d)(1)
The employer shall assess the workplace to determine
protective equipment (PPE).
if
hazards are present, or are likely to be present, which necessitate the use of personal
f such hazards are present, or likely to be present, the employer shall:
1910.132(d)(1 )(i)
Select, and have each affected employee use, the types of PPE that will protect the affected employee from the hazards identified in the hazard
assessment;
1910.132(d)(1 )(ii)
Communicate selection decisions to each affected employee; and,
1910.132(d)(1 )(iii)
Select PPE that properly fits each affected employee.
Note:
Non-mandatory appendix B contains an example of procedures that would comply with the requirement for a hazard assessment.
1910.132(d)(2)
The employer shall verify that the required workplace hazard assessment has been performed through a written certification that identifies the
workplace evaluated; the person certifying that the evaluation has been performed; the date(s) of the hazard assessment; and, which
dentifies
the document as a certification of hazard assessment.
1910.132(e)
Defective and damaged equipment. Defective or damaged personal protective equipment shall not be used.
1910.132(1)
Training.
1910.132(1)(1)
ThP
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least
the
following:
1 9 1 0 . 1 3 2 ( 1 ) ( 1 )(i)
When PPE is necessary;
1 9 1 0 . 1 3 2 ( 1 ) ( 1 )(ii)
What PPE is necessary;
1 9 1 0 . 1 3 2 ( 1 ) ( 1 )(iii)
How
t
o
properly
don,
doff,
adjust,
and
wear
PPE;
1 9 1 0 . 1 3 2 ( 1 ) ( 1 )(iv)
The
limitations
o
f the
PPE;
and,
1 9 1 0 . 1 3 2 ( 1 ) ( 1 )(v)
The
proper
care,
maintenance,
useful
life
and
disposal
o
f the
PPE.
1910.132(1)(2)
Each
affected
properly,
employee
before
being
shall
demonstrate
allowed
to
perform
an
understanding
work
requiring
the
o
f the
use
o
f
training
specified
in
paragraph
(1)(1)
o
f
this
section,
and
the
ability
t
o
use
PPE
PPE.
1910.132(1)(3)
When
the
required
employer
b
y
has
paragraph
reason
(1)(2)
o
f
t
o
believe
t
h
i
s
that
section,
any
the
affected
employer
employee
shall
retrain
who
each
has
already
such
been
employee.
trained
does
not
Circumstances
have
where
the
understanding
retraining
is
and
required
skill
include,
but are not limited to, situations where:
1910.132(f)(3)(i)
Changes
in
the
workplace
render
previous
training
obsolete;
or
1910.132(f)(3)(ii)
Changes
in
the
types
o
f
PPE
t
o
be
used
render
previous
training
obsolete;
or
1910.132(f)(3)(iii)
Inadequacies
in
understanding
an
or
affected
employee's
knowledge
or
use
o
f
assigned
PPE
indicate
that
the
employee
has
not
retained
the
requisite
skill.
1910.132(9)
Paragraphs
section
do
(d)
not
and
(
f)
apply
o
f
t
h
i
s
to§§
section
1 9 1 0 . 1 34
apply
and
only
to§§
1910.133,
1910.135,
1910.136,
1910.138,
and
1910.140.
Paragraphs
(d)
and
(
f)
o
f
this
1910.137.
1910.132(h)
Payment for protective equipment.
1910.132(h)(1)
Except
used
t
o
as
provided
comply
with
b
y
paragraphs
this
part,
shall
(h)(2)
b
e
through
provided
(h)(6)
b
y
the
o
f
this
section,
employer
a
t
no
the
cost
protective
t
o
equipment,
includ ng
personal
protective
equ ipment
(PPE),
employees.
1910.132(h)(2)
The employer is not required to pay for non-specialty safety-toe protective footwear (inc uding steel-toe shoes or steel-toe boots) and non
specialty prescription safety eyewear, provided that the employer permits such items to be worn off the job-site.
1910.132(h)(3)
When the employer provides metatarsal guards and allows the employee, at his or her request, to use shoes or boots with built-in metatarsal
protection, the employer s not required to reimburse the employee for the shoes or boots.
1910.132(h)(4)
The employer is not required to pay for:
1910.132(h)(4)(i)
The
logging
boots
required
by
2
9
CFR
1910.266(d)(1)(v);
1910.132(h)(4)(ii)
Everyday clothing, such as long-sleeve shirts, long pants, street shoes, and norma
work boots; or
1910.132(h)(4)(iii)
Ord nary clothing, skin creams, or other items, used solely for protection from weather, such as winter coats, jackets, gloves, parkas, rubber boots,
hats, raincoats, ordinary sunglasses, and sunscreen.
1910.132(h)(5)
The employer must pay for replacement PPE, except when the employee has lost or intentionally damaged the PPE.
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l�lU.1.>L\nJ\bJ
Where an employee provides adequate protective equipment he or she owns pursuant to paragraph (b) of this section, the employer may allow
the employee to use
it
and is not required to reimburse the employee for that equipment. The employer shall not require an employee to provide
or pay for his or her own PPE, unless the PPE is excepted by paragraphs (h)(2) through (h)(5) of this section.
1910.132(h)(7)
This paragraph (h) shall become effective on February 13, 2008. Employers must implement the PPE payment requirements no later than May
15, 2008.
Note to § 1 9 1 0 . 1 3 2 ( h ) :
When the provisions of another OSHA standard specify whether or not the employer must pay for specific equipment, the payment provisions of
that standard shall prevail.
[39 FR 23502, June 27, 197 4, as amended at 59 FR 16334, April 6, 1994; 59 FR 33910, July 1 , 1994; 59 FR 34580, July 6, 1994; 72 FR 64428,
Nov. 15, 2007; 76 FR 33606, June 8, 2 0 1 1 ; 81
FR 82999, Nov. 18, 2016]
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Bates038
-,
«:
•·•
U N I T E D STATES
DEPARTMENT OF LABOR
f 'f# � � � D
.;ii,
OSHA
MENU
By Standard N u m b e r
1 9 1 0 . 1 3 4 - Respiratory protection.
•
Part Number:
1910
•
Part Number Title:
Occupational Safety and Health Standards
•
Subpart:
1 9 1 0 Subpart I
•
Subpart Title:
Personal Protect ve Equipment
•
Standard Number:
1910.134
•
Title:
Respiratory protection.
• Appendix:
A; B - 1 ; B-2; C; D
•
e-CFR
GPO Source:
This section applies to General Industry (part 1 9 1 0 ) , Shipyards (part 1 9 1 5 ) , Marine Terminals (part 1 9 1 7 ) ,
Longshoring (part 1 9 1 8 ) , and Construction (part 1926)
1910.134(a)
Permissible practice.
1910.134(a)(1)
In the control of those occupational diseases caused by breathing air contaminated with harmful dusts, fogs,
fumes, mists, gases, smokes, sprays, or vapors, the primary objective shall be to prevent atmospheric
contamination
This shall be accomplished as far as feasible by accepted engineering control measures (for
example, enclosure or confinement of the operation, general and local ventilation, and substitution of less
toxic materials). When effective eng neering controls are not feasible, or while they are being instituted,
appropriate respirators shall be used pursuant to this section.
1910.134(a)(2)
A respirator shall be provided to each employee when such equipment is necessary to protect the health of
such employee. The employer shall provide the respirators which are applicable and suitable for the purpose
intended. The employer shall be responsible for the establishment and maintenance of a respiratory
protection program, which shall include the requirements outlined in paragraph (c) of this section. The
program shall cover each employee required by this section to use a respirator.
1910.134(b)
Definitions. The following definitions are important terms used in the respiratory protection standard in this
section.
Air-purifying respirator means a respirator with an air-purifying filter, cartridge, or canister that removes
specific air contaminants by passing ambient air through the air-purifying element.
Assigned protection factor (APF) means the workplace level of respiratory protection that a respirator or
class of respirators is expected to provide to employees when the employer implements a continuing,
effective respiratory protection program as specified by this section.
Atmosphere-supplying respirator means a respirator that supplies the respirator user with breathing air
from a source independent of the ambient atmosphere, and includes supplied-air respirators (SARs) and
self-contained breathing apparatus (SCBA) units.
Canister or cartridge means a container with a filter, sorbent, or catalyst, or combination of these items,
which removes specific contaminants from the air passed through the container.
Demand respirator means an atmosphere-supplying respirator that admits breathing air to the facepiece
only when a negative pressure is created inside the facepiece by inhalation.
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provide, or be delegated the responsibi ity to provide, some or all of the health care services required by
paragraph (e) of this section.
Positive pressure respirator means a respirator in which the pressure inside the respiratory inlet covering
exceeds the ambient air pressure outside the respirator.
Powered air-purifying respirator (PAPR) means an air-purifying respirator that uses a blower to force the
ambient air through air-pur fying elements to the inlet covering.
Pressure demand respirator means a positive pressure atmosphere-supplying respirator that admits
breathing air to the facepiece when the positive pressure is reduced inside the facepiece by inhalation.
Qualitative fit test (QLFT) means a pass/fail fit test to assess the adequacy of respirator fit that relies on the
individual's response to the test agent.
Quantitative fit test (QNFT) means an assessment of the adequacy of respirator fit by numerically
measuring the amount of leakage into the respirator.
Respiratory inlet covering means that portion of a respirator that forms the protective barrier between the
user's respiratory tract and an air-purifying device or breathing air source, or both. It may be a facepiece,
helmet, hood, suit, or a mouthpiece respirator with nose clamp.
Self-contained breathing apparatus (SCBA) means an atmosphere-supplying respirator for which the
breathing air source is designed to be carried by the user.
Service life means the period of time that a respirator, filter or sorbent , or other respiratory equ pment
provides adequate protection to the wearer.
Supplied-air respirator (SAR) or airline respirator means an atmosphere-supplying respirator for which
the source of breathing air is not designed to be carried by the user.
This section means this respiratory protection standard.
Tight-fitting facepiece means a respiratory inlet covering that forms a complete seal with the face.
User seal check means an action conducted by the respirator user to determine if the respirator is properly
seated to the face.
1910.134(c)
Respiratory protection program. This paragraph requires the employer to develop and implement a written
respiratory protection program with required worksite-specific procedures and elements for required
respirator use
The program must be administered by a suitably trained program admin strator. In addition,
certain program elements may be requ red for voluntary use to prevent potential hazards associated with the
use of the respirator. The Small Entity Compliance Guide contains criteria for the selection of a program
administrator and a sample program that meets the requirements of this paragraph. Copies of the Small
Entity Compliance Guide will be available on or about April 8,
1998 from the Occupational Safety and Health
Administration's Office of Publications, Room N 3 1 0 1 , 200 Constitution Avenue, NW, Washington, DC, 2 0 2 1 0
(202-219-4667).
1910.134(c)(1)
In any workplace where respirators are necessary to protect the health of the employee or whenever
respirators are required by the employer, the employer shall establish and implement a written respiratory
protection program with worksite-specific procedures. The program shall be updated as necessary to refiect
those changes in workplace conditions that affect respirator use. The employer shall include in the program
the following provisions of this sect on, as applicable:
1910.134(c)(1)(i)
Procedures for selecting respirators for use in the workplace;
1 9 1 0 . 1 3 4 ( c ) ( 1 )(ii)
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Appendix #4
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Appendix #5
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Appendix #5a
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§ 239l–3
TITLE 42—THE PUBLIC HEALTH AND WELFARE
cian assistant, pharmacy, behavioral and mental
health, public health, and nursing students that
are comparable to those for medical students
under this section, including service obligations,
tuition support, and stipend support. The Surgeon General shall give priority to health professions training institutions that train medical, dental, physician assistant, pharmacy, behavioral and mental health, public health, and
nursing students for some significant period of
time together, but at a minimum have a discrete and shared core curriculum.
(e) Elite Federal disaster teams
The Surgeon General, in consultation with the
Secretary, the Director of the Centers for Disease Control and Prevention, and other appropriate military and Federal government agencies, shall develop criteria for the appointment
of highly qualified Track faculty, medical, dental, physician assistant, pharmacy, behavioral
and mental health, public health, and nursing
students, and graduates to elite Federal disaster
preparedness teams to train and to respond to
public health emergencies, natural disasters,
bioterrorism events, and other emergencies.
(f) Student dropped from Track in affiliate
school
A medical, dental, physician assistant, pharmacy, behavioral and mental health, public
health, or nursing student who, under regulations prescribed by the Surgeon General, is
dropped from the Track in an affiliated school
for deficiency in conduct or studies, or for other
reasons, shall be liable to the United States for
all tuition and stipend support provided to the
student.
(July 1, 1944, ch. 373, title II, § 273, as added Pub.
L. 111–148, title V, § 5315, Mar. 23, 2010, 124 Stat.
639.)
§ 239l–3. Funding
Beginning with fiscal year 2010, the Secretary
shall transfer from the Public Health and Social
Services Emergency Fund such sums as may be
necessary to carry out this part.
(July 1, 1944, ch. 373, title II, § 274, as added Pub.
L. 111–148, title V, § 5315, Mar. 23, 2010, 124 Stat.
642.)
SUBCHAPTER II—GENERAL POWERS AND
DUTIES
PART A—RESEARCH AND INVESTIGATIONS
§ 241. Research and investigations generally
(a) Authority of Secretary
The Secretary shall conduct in the Service,
and encourage, cooperate with, and render assistance to other appropriate public authorities,
scientific institutions, and scientists in the conduct of, and promote the coordination of, research, investigations, experiments, demonstrations, and studies relating to the causes, diagnosis, treatment, control, and prevention of
physical and mental diseases and impairments
of man, including water purification, sewage
treatment, and pollution of lakes and streams.
In carrying out the foregoing the Secretary is
authorized to—
Page 118
(1) collect and make available through publications and other appropriate means, information as to, and the practical application of,
such research and other activities;
(2) make available research facilities of the
Service to appropriate public authorities, and
to health officials and scientists engaged in
special study;
(3) make grants-in-aid to universities, hospitals, laboratories, and other public or private institutions, and to individuals for such
research projects as are recommended by the
advisory council to the entity of the Department supporting such projects and make, upon
recommendation of the advisory council to the
appropriate entity of the Department, grantsin-aid to public or nonprofit universities, hospitals, laboratories, and other institutions for
the general support of their research;
(4) secure from time to time and for such periods as he deems advisable, the assistance and
advice of experts, scholars, and consultants
from the United States or abroad;
(5) for purposes of study, admit and treat at
institutions, hospitals, and stations of the
Service, persons not otherwise eligible for
such treatment;
(6) make available, to health officials, scientists, and appropriate public and other nonprofit institutions and organizations, technical advice and assistance on the application
of statistical methods to experiments, studies,
and surveys in health and medical fields;
(7) enter into contracts, including contracts
for research in accordance with and subject to
the provisions of law applicable to contracts
entered into by the military departments
under sections 2353 and 2354 of title 10, except
that determination, approval, and certification required thereby shall be by the Secretary of Health and Human Services; and
(8) adopt, upon recommendations of the advisory councils to the appropriate entities of
the Department or, with respect to mental
health, the National Advisory Mental Health
Council, such additional means as the Secretary considers necessary or appropriate to
carry out the purposes of this section.
The Secretary may make available to individuals and entities, for biomedical and behavioral
research, substances and living organisms. Such
substances and organisms shall be made available under such terms and conditions (including
payment for them) as the Secretary determines
appropriate.
(b) Testing for carcinogenicity, teratogenicity,
mutagenicity, and other harmful biological
effects; consultation
(1) The Secretary shall conduct and may support through grants and contracts studies and
testing of substances for carcinogenicity, teratogenicity, mutagenicity, and other harmful biological effects. In carrying out this paragraph,
the Secretary shall consult with entities of the
Federal Government, outside of the Department
of Health and Human Services, engaged in comparable activities. The Secretary, upon request
of such an entity and under appropriate arrangements for the payment of expenses, may conduct
for such entity studies and testing of substances
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for carcinogenicity, teratogenicity, mutagenicity, and other harmful biological effects.
(2)(A) The Secretary shall establish a comprehensive program of research into the biological
effects of low-level ionizing radiation under
which program the Secretary shall conduct such
research and may support such research by others through grants and contracts.
(B) The Secretary shall conduct a comprehensive review of Federal programs of research on
the biological effects of ionizing radiation.
(3) The Secretary shall conduct and may support through grants and contracts research and
studies on human nutrition, with particular emphasis on the role of nutrition in the prevention
and treatment of disease and on the maintenance and promotion of health, and programs
for the dissemination of information respecting
human nutrition to health professionals and the
public. In carrying out activities under this
paragraph, the Secretary shall provide for the
coordination of such of these activities as are
performed by the different divisions within the
Department of Health and Human Services and
shall consult with entities of the Federal Government, outside of the Department of Health
and Human Services, engaged in comparable activities. The Secretary, upon request of such an
entity and under appropriate arrangements for
the payment of expenses, may conduct and support such activities for such entity.
(4) The Secretary shall publish a biennial report which contains—
(A) a list of all substances (i) which either
are known to be carcinogens or may reasonably be anticipated to be carcinogens and (ii)
to which a significant number of persons residing in the United States are exposed;
(B) information concerning the nature of
such exposure and the estimated number of
persons exposed to such substances;
(C) a statement identifying (i) each substance contained in the list under subparagraph (A) for which no effluent, ambient, or
exposure standard has been established by a
Federal agency, and (ii) for each effluent, ambient, or exposure standard established by a
Federal agency with respect to a substance
contained in the list under subparagraph (A),
the extent to which, on the basis of available
medical, scientific, or other data, such standard, and the implementation of such standard
by the agency, decreases the risk to public
health from exposure to the substance; and
(D) a description of (i) each request received
during the year involved—
(I) from a Federal agency outside the Department of Health and Human Services for
the Secretary, or
(II) from an entity within the Department
of Health and Human Services to any other
entity within the Department,
testing, program, research, or review, or assessment under this subsection shall be effective for
any fiscal year only to such extent or in such
amounts as are provided in advance in appropriation Acts.
(c) Diseases not significantly occurring in United
States
The Secretary may conduct biomedical research, directly or through grants or contracts,
for the identification, control, treatment, and
prevention of diseases (including tropical diseases) which do not occur to a significant extent
in the United States.
(d) Protection of privacy of individuals who are
research subjects
The Secretary may authorize persons engaged
in biomedical, behavioral, clinical, or other research (including research on mental health, including research on the use and effect of alcohol
and other psychoactive drugs) to protect the privacy of individuals who are the subject of such
research by withholding from all persons not
connected with the conduct of such research the
names or other identifying characteristics of
such individuals. Persons so authorized to protect the privacy of such individuals may not be
compelled in any Federal, State, or local civil,
criminal, administrative, legislative, or other
proceedings to identify such individuals.
(e) Preterm labor and delivery and infant mortality
The Secretary, acting through the Director of
the Centers for Disease Control and Prevention,
shall expand, intensify, and coordinate the activities of the Centers for Disease Control and
Prevention with respect to preterm labor and
delivery and infant mortality.
(July 1, 1944, ch. 373, title III, § 301, 58 Stat. 691;
July 3, 1946, ch. 538, § 7(a), (b), 60 Stat. 423; June
16, 1948, ch. 481, § 4(e), (f), 62 Stat. 467; June 24,
1948, ch. 621, § 4(e), (f), 62 Stat. 601; June 25, 1948,
ch. 654, § 1, 62 Stat. 1017; July 3, 1956, ch. 510, § 4,
70 Stat. 490; Pub. L. 86–798, Sept. 15, 1960, 74 Stat.
1053; Pub. L. 87–838, § 2, Oct. 17, 1962, 76 Stat. 1073;
Pub. L. 89–115, § 3, Aug. 9, 1965, 79 Stat. 448; Pub.
L. 90–174, § 9, Dec. 5, 1967, 81 Stat. 540; Pub. L.
91–513, title I, § 3(a), Oct. 27, 1970, 84 Stat. 1241;
Pub. L. 91–515, title II, § 292, Oct. 30, 1970, 84 Stat.
1308; Pub. L. 92–218, § 6(a)(2), Dec. 23, 1971, 85
Stat. 785; Pub. L. 92–423, § 7(b), Sept. 19, 1972, 86
Stat. 687; Pub. L. 93–282, title I, § 122(b), May 14,
1974, 88 Stat. 132; Pub. L. 93–348, title I,
§ 104(a)(1), July 12, 1974, 88 Stat. 346; Pub. L.
93–352, title I, § 111, July 23, 1974, 88 Stat. 360;
Pub. L. 94–278, title I, § 111, Apr. 22, 1976, 90 Stat.
405; Pub. L. 95–622, title II, §§ 261, 262, Nov. 9, 1978,
92 Stat. 3434; Pub. L. 96–88, title V, § 509(b), Oct.
17, 1979, 93 Stat. 695; Pub. L. 99–158, § 3(a)(5), Nov.
20, 1985, 99 Stat. 879; Pub. L. 99–570, title IV,
§ 4021(b)(2), Oct. 27, 1986, 100 Stat. 3207–124; Pub.
L. 99–660, title I, § 104, Nov. 14, 1986, 100 Stat.
3751; Pub. L. 100–607, title I, § 163(1), (2), Nov. 4,
1988, 102 Stat. 3062; Pub. L. 103–43, title XX,
§ 2009, June 10, 1993, 107 Stat. 213; Pub. L. 109–450,
§ 3(a), Dec. 22, 2006, 120 Stat. 3341.)
to conduct research into, or testing for, the
carcinogenicity of substances or to provide information described in clause (ii) of subparagraph (C), and (ii) how the Secretary and each
such other entity, respectively, have responded to each such request.
2006—Subsec. (e). Pub. L. 109–450 added subsec. (e).
1993—Subsec. (b)(4). Pub. L. 103–43 substituted ‘‘a biennial report’’ for ‘‘an annual report’’ in introductory
provisions.
(5) The authority of the Secretary to enter
into any contract for the conduct of any study,
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(2) for which the factors of medical risk or
type of medical intervention are different for
women, or for which there is reasonable evidence that indicates that such factors or types
may be different for women.
(d) Authorization of appropriations
For the purpose of carrying out this section,
there are authorized to be appropriated such
sums as may be necessary for each of the fiscal
years 2010 through 2014.
(July 1, 1944, ch. 373, title III, § 310A, as added
Pub. L. 111–148, title III, § 3509(b), Mar. 23, 2010,
124 Stat. 533.)
PRIOR PROVISIONS
A prior section 310A of act July 1, 1944, was renumbered section 226 and transferred to section 235 of this
title.
PART B—FEDERAL-STATE COOPERATION
§ 243. General grant of authority for cooperation
(a) Enforcement of quarantine regulations; prevention of communicable diseases
The Secretary is authorized to accept from
State and local authorities any assistance in the
enforcement of quarantine regulations made
pursuant to this chapter which such authorities
may be able and willing to provide. The Secretary shall also assist States and their political
subdivisions in the prevention and suppression
of communicable diseases and with respect to
other public health matters, shall cooperate
with and aid State and local authorities in the
enforcement of their quarantine and other
health regulations, and shall advise the several
States on matters relating to the preservation
and improvement of the public health.
(b) Comprehensive and continuing planning;
training of personnel for State and local
health work; fees
The Secretary shall encourage cooperative activities between the States with respect to comprehensive and continuing planning as to their
current and future health needs, the establishment and maintenance of adequate public health
services, and otherwise carrying out public
health activities. The Secretary is also authorized to train personnel for State and local
health work. The Secretary may charge only
private entities reasonable fees for the training
of their personnel under the preceding sentence.
(c) Development of plan to control epidemics and
meet emergencies or problems resulting from
disasters; cooperative planning; temporary
assistance; reimbursement of United States
(1) The Secretary is authorized to develop (and
may take such action as may be necessary to
implement) a plan under which personnel, equipment, medical supplies, and other resources of
the Service and other agencies under the jurisdiction of the Secretary may be effectively used
to control epidemics of any disease or condition
and to meet other health emergencies or problems. The Secretary may enter into agreements
providing for the cooperative planning between
the Service and public and private community
health programs and agencies to cope with
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health problems (including epidemics and health
emergencies).
(2) The Secretary may, at the request of the
appropriate State or local authority, extend
temporary (not in excess of six months) assistance to States or localities in meeting health
emergencies of such a nature as to warrant Federal assistance. The Secretary may require such
reimbursement of the United States for assistance provided under this paragraph as he may
determine to be reasonable under the circumstances. Any reimbursement so paid shall be
credited to the applicable appropriation for the
Service for the year in which such reimbursement is received.
(July 1, 1944, ch. 373, title III, § 311, 58 Stat. 693;
Pub. L. 89–749, § 5, Nov. 3, 1966, 80 Stat. 1190; Pub.
L. 90–174, § 4, Dec. 5, 1967, 81 Stat. 536; Pub. L.
91–515, title II, § 282, Oct. 30, 1970, 84 Stat. 1308;
Pub. L. 94–317, title II, § 202(b), (c), June 23, 1976,
90 Stat. 703; Pub. L. 97–35, title IX, § 902(c), Aug.
13, 1981, 95 Stat. 559; Pub. L. 97–414, § 8(d), Jan. 4,
1983, 96 Stat. 2060; Pub. L. 99–117, § 11(a), Oct. 7,
1985, 99 Stat. 494.)
AMENDMENTS
1985—Subsec. (c)(1). Pub. L. 99–117 struck out ‘‘referred to in section 247b(f) of this title’’ after ‘‘epidemics of any disease or condition’’, ‘‘involving or resulting
from disasters or any such disease’’ after ‘‘health emergencies or problems’’ in first sentence, and struck out
‘‘resulting from disasters or any disease or condition
referred to in section 247b(f) of this title’’ after ‘‘(including epidemics and health emergencies)’’ in second
sentence.
1983—Subsec. (c)(2). Pub. L. 97–414 substituted ‘‘six
months’’ for ‘‘forty-five days’’ after ‘‘not in excess of’’.
1981—Subsec. (a). Pub. L. 97–35, § 902(c)(1), inserted applicability to other public health matters, and struck
out reference to section 246 of this title.
Subsec. (b). Pub. L. 97–35, § 902(c)(2), substituted ‘‘public health activities’’ for ‘‘the purposes of section 246 of
this title’’.
1976—Subsec. (b). Pub. L. 94–317, § 202(c), inserted provision authorizing Secretary to charge only private entities reasonable fees for training of their personnel.
Subsec. (c). Pub. L. 94–317, § 202(b), made changes in
phraseology and restructured provisions into pars. (1)
and (2) and, in par. (1), as so restructured, inserted provisions authorizing Secretary to develop a plan utilizing Public Health Service personnel, equipment, medical supplies and other resources to control epidemics of
any disease referred to in section 247b of this title.
1970—Subsecs. (a), (b). Pub. L. 91–515 substituted
‘‘Secretary’’ for ‘‘Surgeon General’’ wherever appearing.
1967—Subsec. (c). Pub. L. 90–174 added subsec. (c).
1966—Pub. L. 89–749 designated existing provisions as
subsec. (a), added subsec. (b), and amended subsec. (b)
to permit Surgeon General to train personnel for State
and local health work.
EFFECTIVE DATE OF 1981 AMENDMENT
Amendment by Pub. L. 97–35 effective Oct. 1, 1981, see
section 902(h) of Pub. L. 97–35, set out as a note under
section 238l of this title.
EFFECTIVE DATE OF 1966 AMENDMENT
Section 5(a) of Pub. L. 89–749 provided that subsec. (b)
of this section is effective July 1, 1966.
Section 5(b) of Pub. L. 89–749 provided that the
amendment of subsec. (b) of this section, permitting
the Surgeon General to train personnel for State and
local health work, is effective July 1, 1967.
FOOD ALLERGENS IN
THE
FOOD CODE
Pub. L. 108–282, title II, § 209, Aug. 2, 2004, 118 Stat.
910, provided that: ‘‘The Secretary of Health and
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cation program authorized by this section to determine
if the program has resulted in improvement of quality
and accessibility of mammography services, and if the
program has reduced the frequency of poor quality
mammography and improved early detection of breast
cancer, with Comptroller General, not later than 3
years from Oct. 27, 1992, submit to Congress an interim
report of results of study and, not later than 5 years
from such date to submit a final report.
PART G—QUARANTINE AND INSPECTION
§ 264. Regulations to control communicable diseases
(a) Promulgation and enforcement by Surgeon
General
The Surgeon General, with the approval of the
Secretary, is authorized to make and enforce
such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases
from foreign countries into the States or possessions, or from one State or possession into any
other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection,
fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles
found to be so infected or contaminated as to be
sources of dangerous infection to human beings,
and other measures, as in his judgment may be
necessary.
(b) Apprehension, detention, or conditional release of individuals
Regulations prescribed under this section
shall not provide for the apprehension, detention, or conditional release of individuals except
for the purpose of preventing the introduction,
transmission, or spread of such communicable
diseases as may be specified from time to time
in Executive orders of the President upon the
recommendation of the Secretary, in consultation with the Surgeon General,1.
(c) Application of regulations to persons entering
from foreign countries
Except as provided in subsection (d) of this
section, regulations prescribed under this section, insofar as they provide for the apprehension, detention, examination, or conditional release of individuals, shall be applicable only to
individuals coming into a State or possession
from a foreign country or a possession.
(d) Apprehension and examination of persons
reasonably believed to be infected
(1) Regulations prescribed under this section
may provide for the apprehension and examination of any individual reasonably believed to be
infected with a communicable disease in a qualifying stage and (A) to be moving or about to
move from a State to another State; or (B) to be
a probable source of infection to individuals
who, while infected with such disease in a qualifying stage, will be moving from a State to another State. Such regulations may provide that
if upon examination any such individual is
found to be infected, he may be detained for
such time and in such manner as may be reason1 So in original.
Comma probably should not appear.
ably necessary. For purposes of this subsection,
the term ‘‘State’’ includes, in addition to the
several States, only the District of Columbia.
(2) For purposes of this subsection, the term
‘‘qualifying stage’’, with respect to a communicable disease, means that such disease—
(A) is in a communicable stage; or
(B) is in a precommunicable stage, if the disease would be likely to cause a public health
emergency if transmitted to other individuals.
(e) Preemption
Nothing in this section or section 266 of this
title, or the regulations promulgated under such
sections, may be construed as superseding any
provision under State law (including regulations
and including provisions established by political
subdivisions of States), except to the extent
that such a provision conflicts with an exercise
of Federal authority under this section or section 266 of this title.
(July 1, 1944, ch. 373, title III, § 361, 58 Stat. 703;
1953 Reorg. Plan No. 1, §§ 5, 8, eff. Apr. 11, 1953, 18
F.R. 2053, 67 Stat. 631; Pub. L. 86–624, § 29(c), July
12, 1960, 74 Stat. 419; Pub. L. 94–317, title III,
§ 301(b)(1), June 23, 1976, 90 Stat. 707; Pub. L.
107–188, title I, § 142(a)(1), (2), (b)(1), (c), June 12,
2002, 116 Stat. 626, 627.)
AMENDMENTS
2002—Pub. L. 107–188, § 142(a)(1), (2), (b)(1), and (c),
which directed certain amendments to section 361 of
the Public Health Act, was executed by making the
amendments to this section, which is section 361 of the
Public Health Service Act, to reflect the probable intent of Congress. See below.
Subsec. (b). Pub. L. 107–188, § 142(a)(1), substituted
‘‘Executive orders of the President upon the recommendation of the Secretary, in consultation with the
Surgeon General,’’ for ‘‘Executive orders of the President upon the recommendation of the National Advisory Health Council and the Surgeon General’’.
Subsec. (d). Pub. L. 107–188, § 142(a)(2), (b)(1), substituted in first sentence ‘‘Regulations’’ for ‘‘On recommendation of the National Advisory Health Council,
regulations’’, ‘‘in a qualifying stage’’ for ‘‘in a communicable stage’’ in two places, designated existing text
as par. (1) and substituted ‘‘(A)’’ and ‘‘(B)’’ for ‘‘(1)’’ and
‘‘(2)’’, respectively, and added par. (2).
Subsec. (e). Pub. L. 107–188, § 142(c), added subsec. (e).
1976—Subsec. (d). Pub. L. 94–317 inserted provision defining ‘‘State’’ to include, in addition to the several
States, only the District of Columbia.
1960—Subsec. (c). Pub. L. 86–624 struck out reference
to Territory of Hawaii.
EFFECTIVE DATE OF 1960 AMENDMENT
Amendment by Pub. L. 86–624 effective Aug. 21, 1959,
see section 47(f) of Pub. L. 86–624, set out as a note
under section 201 of this title.
TRANSFER OF FUNCTIONS
Office of Surgeon General abolished by section 3 of
Reorg. Plan No. 3 of 1966, eff. June 25, 1966, 31 F.R. 8855,
80 Stat. 1610, and functions thereof transferred to Secretary of Health, Education, and Welfare by section 1 of
Reorg. Plan No. 3 of 1966, set out as a note under section 202 of this title. Secretary of Health, Education,
and Welfare redesignated Secretary of Health and
Human Services by section 509(b) of Pub. L. 96–88 which
is classified to section 3508(b) of Title 20, Education.
Functions of Federal Security Administrator transferred to Secretary of Health, Education, and Welfare
and all agencies of Federal Security Agency transferred
to Department of Health, Education, and Welfare by
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section 5 of Reorg. Plan No. 1 of 1953, set out as a note
under section 3501 of this title. Federal Security Agency and office of Administrator abolished by section 8 of
Reorg. Plan No. 1 of 1953. Secretary and Department of
Health, Education, and Welfare redesignated Secretary
and Department of Health and Human Services by section 509(b) of Pub. L. 96–88 which is classified to section
3508(b) of Title 20.
EVALUATION OF PUBLIC HEALTH AUTHORITIES
Pub. L. 110–392, title I, § 121, Oct. 13, 2008, 122 Stat.
4200, provided that:
‘‘(a) IN GENERAL.—Not later than 180 days after the
date of enactment of the Comprehensive Tuberculosis
Elimination Act of 2008 [Oct. 13, 2008], the Secretary of
Health and Human Services shall prepare and submit to
the appropriate committees of Congress a report that
evaluates and provides recommendations on changes
needed to Federal and State public health authorities
to address current disease containment challenges such
as isolation and quarantine.
‘‘(b) CONTENTS OF EVALUATION.—The report described
in subsection (a) shall include—
‘‘(1) an evaluation of the effectiveness of current
policies to detain patients with active tuberculosis;
‘‘(2) an evaluation of whether Federal laws should
be strengthened to expressly address the movement
of individuals with active tuberculosis; and
‘‘(3) specific legislative
recommendations
for
changes to Federal laws, if any.
‘‘(c) UPDATE OF QUARANTINE REGULATIONS.—Not later
than 240 days after the date of enactment of this Act
[Oct. 13, 2008], the Secretary of Health and Human
Services shall promulgate regulations to update the
current interstate and foreign quarantine regulations
found in parts 70 and 71 of title 42, Code of Federal Regulations.’’
EXECUTIVE ORDER NO. 12452
Ex. Ord. No. 12452, Dec. 22, 1983, 48 F.R. 56927, which
specified certain communicable diseases for regulations
providing for the apprehension, detention, or conditional release of individuals to prevent the introduction, transmission, or spread of such diseases, was revoked by Ex. Ord. No. 13295, § 5, Apr. 4, 2003, 68 F.R.
17255, set out below.
EX. ORD. NO. 13295. REVISED LIST OF QUARANTINABLE
COMMUNICABLE DISEASES
Ex. Ord. No. 13295, Apr. 4, 2003, 68 F.R. 17255, as
amended by Ex. Ord. No. 13375, § 1, Apr. 1, 2005, 70 F.R.
17299, provided:
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, including section 361(b) of the Public Health
Service Act (42 U.S.C. 264(b)), it is hereby ordered as
follows:
SECTION 1. Based upon the recommendation of the
Secretary of Health and Human Services (the ‘‘Secretary’’), in consultation with the Surgeon General,
and for the purpose of specifying certain communicable
diseases for regulations providing for the apprehension,
detention, or conditional release of individuals to prevent the introduction, transmission, or spread of suspected communicable diseases, the following communicable diseases are hereby specified pursuant to section 361(b) of the Public Health Service Act:
(a) Cholera; Diphtheria; infectious Tuberculosis;
Plague; Smallpox; Yellow Fever; and Viral Hemorrhagic Fevers (Lassa, Marburg, Ebola, Crimean-Congo,
South American, and others not yet isolated or named).
(b) Severe Acute Respiratory Syndrome (SARS),
which is a disease associated with fever and signs and
symptoms of pneumonia or other respiratory illness, is
transmitted from person to person predominantly by
the aerosolized or droplet route, and, if spread in the
population, would have severe public health consequences.
(c) Influenza caused by novel or reemergent influenza
viruses that are causing, or have the potential to cause,
a pandemic.
SEC. 2. The Secretary, in the Secretary’s discretion,
shall determine whether a particular condition constitutes a communicable disease of the type specified in
section 1 of this order.
SEC. 3. The functions of the President under sections
362 and 364(a) of the Public Health Service Act (42
U.S.C. 265 and 267(a)) are assigned to the Secretary.
SEC. 4. This order is not intended to, and does not,
create any right or benefit enforceable at law or equity
by any party against the United States, its departments, agencies, entities, officers, employees or agents,
or any other person.
SEC. 5. Executive Order 12452 of December 22, 1983, is
hereby revoked.
GEORGE W. BUSH.
§ 265. Suspension of entries and imports from
designated places to prevent spread of communicable diseases
Whenever the Surgeon General determines
that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease
into the United States, and that this danger is
so increased by the introduction of persons or
property from such country that a suspension of
the right to introduce such persons and property
is required in the interest of the public health,
the Surgeon General, in accordance with regulations approved by the President, shall have the
power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to
avert such danger, and for such period of time as
he may deem necessary for such purpose.
(July 1, 1944, ch. 373, title III, § 362, 58 Stat. 704.)
TRANSFER OF FUNCTIONS
Office of Surgeon General abolished by section 3 of
Reorg. Plan No. 3 of 1966, eff. June 25, 1966, 31 F.R. 8855,
80 Stat. 1610, and functions thereof transferred to Secretary of Health, Education, and Welfare by section 1 of
Reorg. Plan No. 3 of 1966, set out as a note under section 202 of this title. Secretary of Health, Education,
and Welfare redesignated Secretary of Health and
Human Services by section 509(b) of Pub. L. 96–88 which
is classified to section 3508(b) of Title 20, Education.
DELEGATION OF FUNCTIONS
For assignment of functions of President under this
section, see section 3 of Ex. Ord. No. 13295, Apr. 4, 2003,
68 F.R. 17255, set out as a note under section 264 of this
title.
§ 266. Special quarantine powers in time of war
To protect the military and naval forces and
war workers of the United States, in time of
war, against any communicable disease specified
in Executive orders as provided in subsection (b)
of section 264 of this title, the Secretary, in consultation with the Surgeon General, is authorized to provide by regulations for the apprehension and examination, in time of war, of any individual reasonably believed (1) to be infected
with such disease and (2) to be a probable source
of infection to members of the armed forces of
the United States or to individuals engaged in
the production or transportation of arms, munitions, ships, food, clothing, or other supplies for
the armed forces. Such regulations may provide
that if upon examination any such individual is
found to be so infected, he may be detained for
such time and in such manner as may be reasonably necessary.
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(July 1, 1944, ch. 373, title III, § 363, 58 Stat. 704;
Pub. L. 107–188, title I, § 142(a)(3), (b)(2), June 12,
2002, 116 Stat. 626, 627.)
AMENDMENTS
2002—Pub. L. 107–188, which directed substitution of
‘‘the Secretary, in consultation with the Surgeon General,’’ for ‘‘the Surgeon General, on recommendation of
the National Advisory Health Council,’’ and striking
out of ‘‘in a communicable stage’’ after ‘‘(1) to be infected with such disease’’, in section 363 of the Public
Health Act, was executed to this section, which is section 363 of the Public Health Service Act, to reflect the
probable intent of Congress.
TRANSFER OF FUNCTIONS
Office of Surgeon General abolished by section 3 of
Reorg. Plan No. 3 of 1966, eff. June 25, 1966, 31 F.R. 8855,
80 Stat. 1610, and functions thereof transferred to Secretary of Health, Education, and Welfare by section 1 of
Reorg. Plan No. 3 of 1966, set out as a note under section 202 of this title. Secretary of Health, Education,
and Welfare redesignated Secretary of Health and
Human Services by section 509(b) of Pub. L. 96–88 which
is classified to section 3508(b) of Title 20, Education.
TERMINATION OF WAR AND EMERGENCIES
Joint Res. July 25, 1947, ch. 327, § 3, 61 Stat. 451, provided that in the interpretation of this section, the
date July 25, 1947, shall be deemed to be the date of termination of any state of war theretofore declared by
Congress and of the national emergencies proclaimed
by the President on Sept. 8, 1939, and May 27, 1941.
§ 267. Quarantine stations, grounds, and anchorages
(a) Control and management
Except as provided in title II of the Act of
June 15, 1917, as amended [50 U.S.C. 191 et seq.],
the Surgeon General shall control, direct, and
manage all United States quarantine stations,
grounds, and anchorages, designate their boundaries, and designate the quarantine officers to
be in charge thereof. With the approval of the
President he shall from time to time select suitable sites for and establish such additional stations, grounds, and anchorages in the States and
possessions of the United States as in his judgment are necessary to prevent the introduction
of communicable diseases into the States and
possessions of the United States.
(b) Hours of inspection
The Surgeon General shall establish the hours
during which quarantine service shall be performed at each quarantine station, and, upon
application by any interested party, may establish quarantine inspection during the twentyfour hours of the day, or any fraction thereof, at
such quarantine stations as, in his opinion, require such extended service. He may restrict the
performance of quarantine inspection to hours
of daylight for such arriving vessels as cannot,
in his opinion, be satisfactorily inspected during
hours of darkness. No vessel shall be required to
undergo quarantine inspection during the hours
of darkness, unless the quarantine officer at
such quarantine station shall deem an immediate inspection necessary to protect the public
health. Uniformity shall not be required in the
hours during which quarantine inspection may
be obtained at the various ports of the United
States.
Page§ 267
395
(c) Overtime pay for employees of Service
The Surgeon General shall fix a reasonable
rate of extra compensation for overtime services
of employees of the United States Public Health
Service, Foreign Quarantine Division, performing overtime duties including the operation of
vessels, in connection with the inspection or
quarantine treatment of persons (passengers and
crews), conveyances, or goods arriving by land,
water, or air in the United States or any place
subject to the jurisdiction thereof, hereinafter
referred to as ‘‘employees of the Public Health
Service’’, when required to be on duty between
the hours of 6 o’clock postmeridian and 6 o’clock
antemeridian (or between the hours of 7 o’clock
postmeridian and 7 o’clock antemeridian at stations which have a declared workday of from 7
o’clock antemeridian to 7 o’clock postmeridian),
or on Sundays or holidays, such rate, in lieu of
compensation under any other provision of law,
to be fixed at two times the basic hourly rate for
each hour that the overtime extends beyond 6
o’clock (or 7 o’clock as the case may be) postmeridian, and two times the basic hourly rate
for each overtime hour worked on Sundays or
holidays. As used in this subsection, the term
‘‘basic hourly rate’’ shall mean the regular basic
rate of pay which is applicable to such employees for work performed within their regular
scheduled tour of duty.
(d) Payment of extra compensation to United
States; bond or deposit to assure payment;
deposit of moneys to credit of appropriation
(1) The said extra compensation shall be paid
to the United States by the owner, agent, consignee, operator, or master or other person in
charge of any conveyance, for whom, at his request, services as described in this subsection
(hereinafter referred to as overtime service) are
performed. If such employees have been ordered
to report for duty and have so reported, and the
requested services are not performed by reason
of circumstances beyond the control of the employees concerned, such extra compensation
shall be paid on the same basis as though the
overtime services had actually been performed
during the period between the time the employees were ordered to report for duty and did so report, and the time they were notified that their
services would not be required, and in any case
as though their services had continued for not
less than one hour. The Surgeon General with
the approval of the Secretary of Health and
Human Services may prescribe regulations requiring the owner, agent, consignee, operator, or
master or other person for whom the overtime
services are performed to file a bond in such
amounts and containing such conditions and
with such sureties, or in lieu of a bond, to deposit money or obligations of the United States
in such amount, as will assure the payment of
charges under this subsection, which bond or deposit may cover one or more transactions or all
transactions during a specified period: Provided,
That no charges shall be made for services performed in connection with the inspection of (1)
persons arriving by international highways, ferries, bridges, or tunnels, or the conveyances in
which they arrive, or (2) persons arriving by aircraft or railroad trains, the operations of which
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TITLE 42—THE PUBLIC HEALTH AND WELFARE
are covered by published schedules, or the aircraft or trains in which they arrive, or (3) persons arriving by vessels operated between Canadian ports and ports on Puget Sound or operated
on the Great Lakes and connecting waterways,
the operations of which are covered by published
schedules, or the vessels in which they arrive.
(2) Moneys collected under this subsection
shall be deposited in the Treasury of the United
States to the credit of the appropriation charged
with the expense of the services, and the appropriations so credited shall be available for the
payment of such compensation to the said employees for services so rendered.
(July 1, 1944, ch. 373, title III, § 364, 58 Stat. 704;
Pub. L. 85–58, ch. VII, § 701, June 21, 1957, 71 Stat.
181; Pub. L. 85–580, title II, § 201, Aug. 1, 1958, 72
Stat. 467; Pub. L. 96–88, title V, § 509(b), Oct. 17,
1979, 93 Stat. 695.)
AMENDMENTS
1958—Subsec. (c). Pub. L. 85–580 increased rate of pay
for each hour that overtime extends beyond 6 o’clock
(or 7 o’clock as the case may be) postmeridian from one
and one-half times the basic hourly rate to two times
the basic hourly rate.
1957—Subsecs. (c), (d). Pub. L. 85–58 added subsecs. (c)
and (d).
TRANSFER OF FUNCTIONS
‘‘Secretary of Health and Human Services’’ substituted for ‘‘Secretary of Health, Education, and Welfare’’ in subsec. (d) pursuant to section 509(b) of Pub. L.
96–88 which is classified to section 3508(b) of Title 20,
Education.
Functions of Public Health Service, Surgeon General
of Public Health Service, and all other officers and employees of Public Health Service, and functions of all
agencies of or in Public Health Service transferred to
Secretary of Health, Education, and Welfare by Reorg.
Plan No. 3 of 1966, eff. June 25, 1966, 31 F.R. 8855, 80 Stat.
1610, set out as a note under section 202 of this title.
Secretary of Health, Education, and Welfare redesignated Secretary of Health and Human Services by section 509(b) of Pub. L. 96–88 which is classified to section
3508(b) of Title 20.
DELEGATION OF FUNCTIONS
Functions of President delegated to Secretary of
Health Health and Human Services, see Ex. Ord. No.
11140, Jan. 30, 1964, 29 F.R. 1637, as amended, set out as
a note under section 202 of this title.
For assignment of functions of President under subsec. (a) of this section, see section 3 of Ex. Ord. No.
13295, Apr. 4, 2003, 68 F.R. 17255, set out as a note under
section 264 of this title.
§ 268. Quarantine duties of consular and other officers
(a) Any consular or medical officer of the
United States, designated for such purpose by
the Secretary, shall make reports to the Surgeon General, on such forms and at such intervals as the Surgeon General may prescribe, of
the health conditions at the port or place at
which such officer is stationed.
(b) It shall be the duty of the customs officers
and of Coast Guard officers to aid in the enforcement of quarantine rules and regulations; but no
additional compensation, except actual and necessary traveling expenses, shall be allowed any
such officer by reason of such services.
(July 1, 1944, ch. 373, title III, § 365, 58 Stat. 705;
1953 Reorg. Plan No. 1, §§ 5, 8, eff. Apr. 11, 1953, 18
F.R. 2053, 67 Stat. 631.)
Page§ 267
396
TRANSFER OF FUNCTIONS
For transfer of authorities, functions, personnel, and
assets of the Coast Guard, including the authorities
and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security,
and for treatment of related references, see sections
468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set
out as a note under section 542 of Title 6.
Office of Surgeon General abolished by section 3 of
Reorg. Plan No. 3 of 1966, eff. June 25, 1966, 31 F.R. 8855,
80 Stat. 1610, and functions thereof transferred to Secretary of Health, Education, and Welfare by section 1 of
Reorg. Plan No. 3 of 1966, set out as a note under section 202 of this title. Secretary of Health, Education,
and Welfare redesignated Secretary of Health and
Human Services by section 509(b) of Pub. L. 96–88 which
is classified to section 3508(b) of Title 20, Education.
Reference to Secretary of Health, Education, and
Welfare substituted for reference to Federal Security
Administrator pursuant to section 5 of Reorg. Plan No.
1, of 1953, set out as a note under section 3501 of this
title, which transferred functions of Federal Security
Administrator to Secretary of Health, Education, and
Welfare and all agencies of Federal Security Agency to
Department of Health, Education, and Welfare. Federal
Security Agency and office of Administrator abolished
by section 8 of Reorg. Plan No. 1 of 1953. Secretary and
Department of Health, Education, and Welfare redesignated Secretary and Department of Health and Human
Services by section 509(b) of Pub. L. 96–88 which is classified to section 3508(b) of Title 20.
§ 269. Bills of health
(a) Detail of medical officer; conditions precedent to issuance; consular officer to receive
fees
Except as otherwise prescribed in regulations,
any vessel at any foreign port or place clearing
or departing for any port or place in a State or
possession shall be required to obtain from the
consular officer of the United States or from the
Public Health Service officer, or other medical
officer of the United States designated by the
Surgeon General, at the port or place of departure, a bill of health in duplicate, in the form
prescribed by the Surgeon General. The President, from time to time, shall specify the ports
at which a medical officer shall be stationed for
this purpose. Such bill of health shall set forth
the sanitary history and condition of said vessel, and shall state that it has in all respects
complied with the regulations prescribed pursuant to subsection (c) of this section. Before
granting such duplicate bill of health, such consular or medical officer shall be satisfied that
the matters and things therein stated are true.
The consular officer shall be entitled to demand
and receive the fees for bills of health and such
fees shall be established by regulation.
(b) Collectors of customs to receive originals; duplicate copies as part of ship’s papers
Original bills of health shall be delivered to
the collectors of customs at the port of entry.
Duplicate copies of such bills of health shall be
delivered at the time of inspection to quarantine
officers at such port. The bills of health herein
prescribed shall be considered as part of the
ship’s papers, and when duly certified to by the
proper consular or other officer of the United
States, over his official signature and seal, shall
be accepted as evidence of the statements therein contained in any court of the United States.
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TITLE 42—THE PUBLIC HEALTH AND WELFARE
(c) Regulations to secure sanitary conditions of
vessels
The Surgeon General shall from time to time
prescribe regulations, applicable to vessels referred to in subsection (a) of this section for the
purpose of preventing the introduction into the
States or possessions of the United States of any
communicable disease by securing the best sanitary condition of such vessels, their cargoes,
passengers, and crews. Such regulations shall be
observed by such vessels prior to departure, during the course of the voyage, and also during inspection, disinfection, or other quarantine procedure upon arrival at any United States quarantine station.
(d) Vessels from ports near frontier
The provisions of subsections (a) and (b) of
this section shall not apply to vessels plying between such foreign ports on or near the frontiers
of the United States and ports of the United
States as are designated by treaty.
(e) Compliance with regulations
It shall be unlawful for any vessel to enter any
port in any State or possession of the United
States to discharge its cargo, or land its passengers, except upon a certificate of the quarantine officer that regulations prescribed under
subsection (c) of this section have in all respects
been complied with by such officer, the vessel,
and its master. The master of every such vessel
shall deliver such certificate to the collector of
customs at the port of entry, together with the
original bill of health and other papers of the
vessel. The certificate required by this subsection shall be procurable from the quarantine
officer, upon arrival of the vessel at the quarantine station and satisfactory inspection thereof, at any time within which quarantine services
are performed at such station.
(July 1, 1944, ch. 373, title III, § 366, 58 Stat. 705.)
TRANSFER OF FUNCTIONS
Functions of Public Health Service, Surgeon General
of Public Health Service, and all other officers and employees of Public Health Service, and functions of all
agencies of or in Public Health Service transferred to
Secretary of Health, Education, and Welfare by Reorg.
Plan No. 3 of 1966, eff. June 25, 1966, 31 F.R. 8855, 80 Stat.
1610, set out as a note under section 202 of this title.
Secretary of Health, Education, and Welfare redesignated Secretary of Health and Human Services by section 509(b) of Pub. L. 96–88 which is classified to section
3508(b) of Title 20, Education.
All offices of collector of customs, comptroller of customs, surveyor of customs, and appraiser of merchandise of Bureau of Customs of Department of the Treasury to which appointments were required to be made by
the President with the advice and consent of the Senate ordered abolished, with such offices to be terminated not later than December 31, 1966, by Reorg. Plan
No. 1, of 1965, eff. May 25, 1965, 30 F.R. 7035, 79 Stat. 1317,
set out in the Appendix to Title 5, Government Organization and Employees. All functions of offices eliminated were already vested in Secretary of the Treasury
by Reorg. Plan No. 26 of 1950, eff. July 31, 1950, 15 F.R.
4935, 64 Stat. 1280, set out in the Appendix to Title 5.
§ 270. Quarantine regulations governing civil air
navigation and civil aircraft
The Surgeon General is authorized to provide
by regulations for the application to air naviga-
Page§ 271
397
tion and aircraft of any of the provisions of sections 267 to 269 of this title and regulations prescribed thereunder (including penalties and forfeitures for violations of such sections and regulations), to such extent and upon such conditions as he deems necessary for the safeguarding
of the public health.
(July 1, 1944, ch. 373, title III, § 367, 58 Stat. 706.)
ABOLITION OF OFFICE OF SURGEON GENERAL
Office of Surgeon General abolished by section 3 of
Reorg. Plan No. 3 of 1966, eff. June 25, 1966, 31 F.R. 8855,
80 Stat. 1610, and functions thereof transferred to Secretary of Health, Education, and Welfare by section 1 of
Reorg. Plan No. 3 of 1966, set out as a note under section 202 of this title. Secretary of Health, Education,
and Welfare redesignated Secretary of Health and
Human Services by section 509(b) of Pub. L. 96–88 which
is classified to section 3508(b) of Title 20, Education.
§ 271. Penalties for violation of quarantine laws
(a) Penalties for persons violating quarantine
laws
Any person who violates any regulation prescribed under sections 264 to 266 of this title, or
any provision of section 269 of this title or any
regulation prescribed thereunder, or who enters
or departs from the limits of any quarantine
station, ground, or anchorage in disregard of
quarantine rules and regulations or without permission of the quarantine officer in charge, shall
be punished by a fine of not more than $1,000 or
by imprisonment for not more than one year, or
both.
(b) Penalties for vessels violating quarantine
laws
Any vessel which violates section 269 of this
title, or any regulations thereunder or under
section 267 of this title, or which enters within
or departs from the limits of any quarantine
station, ground, or anchorage in disregard of the
quarantine rules and regulations or without permission of the officer in charge, shall forfeit to
the United States not more than $5,000, the
amount to be determined by the court, which
shall be a lien on such vessel, to be recovered by
proceedings in the proper district court of the
United States. In all such proceedings the
United States attorney shall appear on behalf of
the United States; and all such proceedings shall
be conducted in accordance with the rules and
laws governing cases of seizure of vessels for violation of the revenue laws of the United States.
(c) Remittance or mitigation of forfeitures
With the approval of the Secretary, the Surgeon General may, upon application therefor,
remit or mitigate any forfeiture provided for
under subsection (b) of this section, and he shall
have authority to ascertain the facts upon all
such applications.
(July 1, 1944, ch. 373, title III, § 368, 58 Stat. 706;
June 25, 1948, ch. 646, § 1, 62 Stat. 909; 1953 Reorg.
Plan No. 1, §§ 5, 8, eff. Apr. 11, 1953, 18 F.R. 2053,
67 Stat. 631.)
CHANGE OF NAME
Act June 25, 1948, eff. Sept. 1, 1948, substituted
‘‘United States attorney’’ for ‘‘United States district
attorney’’. See section 541 of Title 28, Judiciary and Ju-
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TITLE 42—THE PUBLIC HEALTH AND WELFARE
dicial Procedure, and Historical and Revision note
thereunder.
TRANSFER OF FUNCTIONS
Office of Surgeon General abolished by section 3 of
Reorg. Plan No. 3 of 1966, eff. June 25, 1966, 31 F.R. 8855,
80 Stat. 1610, and functions thereof transferred to Secretary of Health, Education, and Welfare by section 1 of
Reorg. Plan No. 3 of 1966, set out as a note under section 202 of this title. Secretary of Health, Education,
and Welfare redesignated Secretary of Health and
Human Services by section 509(b) of Pub. L. 96–88 which
is classified to section 3508(b) of Title 20, Education.
Functions of Federal Security Administrator transferred to Secretary of Health, Education, and Welfare
and all agencies of Federal Security Agency transferred
to Department of Health, Education, and Welfare by
section 5 of Reorg. Plan No. 1 of 1953, set out as a note
under section 3501 of this title. Federal Security Agency and office of Administrator abolished by section 8 of
Reorg. Plan No. 1 of 1953. Secretary and Department of
Health, Education, and Welfare redesignated Secretary
and Department of Health and Human Services by section 509(b) of Pub. L. 96–88 which is classified to section
3508(b) of Title 20.
§ 272. Administration of oaths by quarantine officers
Medical officers of the United States, when
performing duties as quarantine officers at any
port or place within the United States, are authorized to take declarations and administer
oaths in matters pertaining to the administration of the quarantine laws and regulations of
the United States.
(July 1, 1944, ch. 373, title III, § 369, 58 Stat. 706.)
PART H—ORGAN TRANSPLANTS
PRIOR PROVISIONS
A prior part H related to grants to Alaska for mental
health, prior to the general revision of part H by Pub.
L. 98–507, title II, § 201, Oct. 19, 1984, 98 Stat. 2342.
Another prior part H, entitled ‘‘National Library of
Medicine’’, as added by act Aug. 3, 1956, ch. 907, 70 Stat.
960, was redesignated part I and classified to section 275
et seq. of this title, prior to repeal by Pub. L. 99–158.
§ 273. Organ procurement organizations
(a) Grant authority of Secretary
(1) The Secretary may make grants for the
planning of qualified organ procurement organizations described in subsection (b) of this section.
(2) The Secretary may make grants for the establishment, initial operation, consolidation,
and expansion of qualified organ procurement
organizations described in subsection (b) of this
section.
(b) Qualified organizations
(1) A qualified organ procurement organization for which grants may be made under subsection (a) of this section is an organization
which, as determined by the Secretary, will
carry out the functions described in paragraph
(2) 1 and—
(A) is a nonprofit entity,
(B) has accounting and other fiscal procedures (as specified by the Secretary) necessary
to assure the fiscal stability of the organization,
(C) has an agreement with the Secretary to
be reimbursed under title XVIII of the Social
Security Act [42 U.S.C. 1395 et seq.] for the
procurement of kidneys,
(D) notwithstanding any other provision of
law, has met the other requirements of this
section and has been certified or recertified by
the Secretary within the previous 4-year period as meeting the performance standards to
be a qualified organ procurement organization
through a process that either—
(i) granted certification or recertification
within such 4-year period with such certification or recertification in effect as of January 1, 2000, and remaining in effect through
the earlier of—
(I) January 1, 2002; or
(II) the completion of recertification
under the requirements of clause (ii); or
(ii) is defined through regulations that are
promulgated by the Secretary by not later
than January 1, 2002, that—
(I) require recertifications of qualified
organ procurement organizations not more
frequently than once every 4 years;
(II) rely on outcome and process performance measures that are based on empirical evidence, obtained through reasonable efforts, of organ donor potential and
other related factors in each service area
of qualified organ procurement organizations;
(III) use multiple outcome measures as
part of the certification process; and
(IV) provide for a qualified organ procurement organization to appeal a decertification to the Secretary on substantive
and procedural grounds; 2
(E) has procedures to obtain payment for
non-renal organs provided to transplant centers,
(F) has a defined service area that is of sufficient size to assure maximum effectiveness in
the procurement and equitable distribution of
organs, and that either includes an entire metropolitan statistical area (as specified by the
Director of the Office of Management and
Budget) or does not include any part of the
area,
(G) has a director and such other staff, including the organ donation coordinators and
organ procurement specialists necessary to effectively obtain organs from donors in its
service area, and
(H) has a board of directors or an advisory
board which—
(i) is composed of—
(I) members who represent hospital administrators, intensive care or emergency
room personnel, tissue banks, and voluntary health associations in its service
area,
(II) members who represent the public
residing in such area,
(III) a physician with knowledge, experience,
or
skill
in
the
field
of
histocompatability 3 or an individual with
2 So in original.
3 So in original.
1 See References in Text note below.
Page§ 271
398
The semicolon probably should be a comma.
Probably should be ‘‘histocompatibility’’.
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Appendix #6
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Appendix #7
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r,\ U N I T E D STATES
f "I � � E;21 D
\aJ DEPARTMENT OF LABOR
CONTACT US
Occupational Safety and Health Administration
OSHA
v
STANDARDS
OSHA Laws & Regulations
v
ENFORCEMENT
TOPICS
v
HELP AND RESOURCES
v
FAQ
NEWS
A TO Z INDEX
v
ENGLISH
ESPANOL
SEARCH OSHA
OSH Act of 1970
OSH Act of 1 9 7 0
Table of Contents
General Duty Clause
Complete OSH Act Version ("All-in-One")
Public Law 91-596
84 STAT. 1590
91st Congress, S.2193
December 29, 1970,
as amended through January 1 , 2004. ( 1 )
An Act
To assure safe and healthful working conditions for working men and women; by authoriz ng enforcement of the standards developed under the Act;
by assisting and encouraging the States in their efforts to assure safe and healthful working conditions; by providing for research, information,
education, and training in the field of occupational safety and health; and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as
the "Occupational Safety and Health Act of 1970."
Footnote (1) See Historical notes at the end of this document for changes and amendments affecting the OSH Act since its passage in 1970
through January 1 , 2004.
SEC. 2. Congressional Findings and Purpose
(a)
The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial
burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical
expenses, and disability compensation payments.
(b) The Congress declares
it
to be its purpose and policy, through the exercise of its powers to regulate commerce
among the several States and with foreign nations and to provide for the general welfare, 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 --
( 1 ) by encouraging employers and employees in their efforts to reduce the number of occupational safety and
health hazards at their places of employment, and to st mulate employers and employees to institute new and to
perfect existing programs for providing safe and healthful working conditions
(2) by providing that employers and employees have separate but dependent responsibilities and rights with
respect to achieving safe and healthful working conditions;
(3) by authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to
businesses affecting interstate commerce, and by creating an Occupational Safety and Health Review
Commission for carrying out adjudicatory functions under the Act;
(4) by building upon advances already made through employer and employee initiative for providing safe and
healthful working conditions;
(5) by providing for research in the field of occupational safety and health, including the psychological factors
involved, and by developing innovative methods, techniques, and approaches for dealing with occupational safety
and health problems;
(6) by exploring ways to discover latent diseases, establishing causal connections between diseases and work in
environmental conditions, and conducting other research relating to health problems, in recognition of the fact
that occupational health standards present problems often different from those involved in occupational safety;
(7) by providing medical criteria which will assure insofar as practicable that no employee will suffer diminished
health, functional capacity, or life expectancy as a result of his work experience;
29 USC 651
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(8) by providing for training programs to increase the number and competence of personnel engaged in the field
of occupational safety and health; affecting the OSH Act since its passage in 1970 through January 1 , 2004.
(9) by providing for the development and promulgation of occupational safety and health standards;
(10) by providing an effective enforcement program which shall include a prohibition against giving advance
notice of any inspection and sanctions for any individual violating this prohibition;
( 1 1 ) by encouraging the States to assume the fullest responsibility for the administration and enforcement of their
occupational safety and health laws by providing grants to the States to assist in identifying their needs and
responsibilities in the area of occupational safety and health, to develop plans in accordance with the provisions
of this Act, to improve the administration and enforcement of State occupational safety and health laws, and to
conduct experimental and demonstration projects in connection therewith;
(12)
by providing for appropr ate reporting procedures with respect to occupational safety and health which
procedures will help achieve the objectives of this Act and accurately describe the nature of the occupational
safety and health problem;
(13)
by encouraging joint labor-management efforts to reduce injuries and disease arising out of employment
SEC. 3. Definitions
For the purposes of this
Act -29 USC 652
( 1 ) The term "Secretary" means the Secretary of Labor.
(2) The term "Commission" means the Occupational Safety and Health Review Commission established under
this Act.
(3)
The term "commerce" means trade, traffic, commerce, transportation, or communication among the
several States, or between a State and any place outside thereof, or within the District of Columbia, or a
For Trust
possession of the United States (other than the Trust Territory of the Pacific Islands), or between points
Territory
in the same State but through a point outside thereof.
coverage,
including the
Northern Mariana
Islands, see
Historical notes
(4) The term "person" means one or more individuals, partnerships, associations, corporations, business trusts,
legal representatives, or any organized group of persons.
(5)
The term "employer" means a person engaged in a business
affecting commerce who has employees,
but does not include the United States (not including the United States Postal Service) or any State or
Pub. L.
political subdivision of a State.
United States
105-241
Postal Service is
an employer
subject to the
Act. See
Historical notes.
(6) The term "employee" means an employee of an employer who is employed in a business of his employer
which affects commerce.
(7) The term "State" includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin
Islands, American Samoa, Guam, and the Trust Territory of the Pacific Islands.
(8) The term "occupational safety and health standard" means 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.
(9) The term "national consensus standard" means any occupational safety and health standard or modification
thereof which (1 ), has been adopted and promulgated by a nationally recognized standards-producing
organization under procedures whereby it can be determined by the Secretary that persons interested and
affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was
formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been
designated as such a standard by the Secretary, after consultation with other appropriate Federal agencies.
(10) The term "established Federal standard" means any operative occupational safety and health standard
established by any agency of the United States and presently in effect, or contained in any Act of Congress in
force on the date of enactment of this Act.
( 1 1 ) The term "Committee" means the National Advisory Committee on Occupational Safety and Health
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established under this Act.
(12) The term "Director" means the Director of the National Institute for Occupational Safety and Health.
(13) The term "Institute" means the Nationa
Institute for Occupational Safety and Health established under this
Act.
(14) The term "Workmen's Compensation Commission" means the National Commission on State Workmen's
Compensation Laws established under this Act.
SEC. 4. Applicability of This Act
(a)
This Act shall apply with respect to employment performed in a workplace in a State, the District of Columbia,
the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Trust Territory of the
Pacific Islands, Wake Is and, Outer Continenta
29 USC 653
Shelf Lands defined in the Outer Continental Shelf Lands Act,
Johnston Island, and the Canal Zone. The Secretary of the Interior shall, by regulation, provide for judicial
enforcement of this Act by the courts established for areas in which there are no United States district courts
For Canal Zone
and Trust
Territory
having jurisdiction.
coverage,
including the
Northern Mariana
Islands, see
Historical notes.
(b)
( 1 ) Nothing in this Act shall apply to working conditions of employees with respect to which other Federal
agencies, and State agencies acting under section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C.
2021 ), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety
or health.
(2) The safety and health standards promulgated under the Act of June 30, 1936, commonly known as the Walsh
Healey Act (41
U.S.C. 35 et seq.), the Service Contract Act of 1965 (41
U.S.C. 351
et seq.), Public Law 91-54,
Act of August 9, 1969 (40 U.S.C. 333), Public Law 85-742, Act of August 23, 1958 (33 U.S.C. 941 ), and the
National Foundation on Arts and Humanities Act (20 U . S . C . 951
et seq.) are superseded on the effective date of
correspond ng standards, promulgated under this Act, which are determined by the Secretary to be more
effective. Standards issued under the laws listed in this paragraph and in effect on or after the effective date of
this Act shall be deemed to be occupational safety and health standards issued under this Act, as well as under
such other Acts.
(3) The Secretary shall, within three years after the effective date of this Act, report to the Congress his
recommendations for legislation to avoid unnecessary duplication and to achieve coordination between this Act
and other Federal laws.
(4) Nothing in this Act shall be construed to supersede or in any manner affect any workmen's compensation law
or to enlarge or diminish
or affect in any other manner the common law or statutory rights, duties, or liabilities of
employers and employees under any law with respect to injur es, diseases, or death of employees arising out of,
or in the course of, employment.
SEC. 5. Duties
(a) Each employer --
(1)
shall furnish to each of his employees employment and a place of employment which are free from
recognized hazards that are causing or are likely to cause death or serious physical harm to h s
29 USC 654
employees;
(2) shall comply with occupational safety and health standards promulgated under this Act.
(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders
ssued pursuant to this
Act which are applicable to his own actions and conduct.
SEC. 6. Occupational Safety and Health Standards
(a)
Without regard to chapter 5 of title 5, United States Code, 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 Act and
ending two years after such date, by rule promulgate as an occupationa
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) The Secretary may by rule promulgate, modify, or revoke any occupational safety or health standard in the following
manner:
{1)
Whenever the Secretarv. uoon the basis of information submitted to him in writina bv an interested oerson. a
29 USC 655
Bates078
representative of any organization of employers or employees, a nationally recogn zed 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
Act, the
Secretary may request the recommendations of an advisory committee appointed under section 7 of this Act. 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 with n ninety days from the date of its appointment or within such
onger 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 s xty 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 n nety days) as the Secretary determines may be necessary to insure that
affected employers and employees will be
nformed 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 f 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 personne
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 comp iance 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 s 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 that 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 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
Bates079
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
nto 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
nsure 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
technologica
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 shal
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, United States Code, make appropriate modifications in the
foregoing requirements relating to the use of labels or other forms of warning
, monitor ng 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 Act than the national consensus standard.
(c)
( 1 ) The Secretary shall provide, without regard to the requirements of chapter 5, title 5, Unites States Code, 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
(8) 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 section 6 (b) of this Act, 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) 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
ev dence 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) Whenever the Secretary promulgates any standard, makes any rule, order, or decision, grants any exemption or
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be published in the Federal Register.
(f) 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 h s principal place of business, for a judicia
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) 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.
SEC. 7. Advisory Committees; Administration
(a)
( 1 ) There is hereby established a National Advisory Committee on Occupational Safety and Health consisting of
twelve members appointed by the Secretary, four of whom are to be designated by the Secretary of Health and
Human Services, without regard to the provisions of title 5, United States Code, governing appointments in the
competitive service, and composed of representatives of management, labor, occupational safety and
occupational health professions, and of the public. The Secretary shall designate one of the public members as
Chairman. The members shall be selected upon the basis of their experience and competence
n the field of
occupational safety and health.
(2) The Committee shall advise, consult with, and make recommendations to the Secretary and the Secretary of
Health and Human Services on matters relating to the administration of the Act. The Committee shall hold no
fewer than two meetings during each calendar year. All meetings of the Committee shall be open to the public
and a transcript shall be kept and made available for public inspect on.
(3) The members of the Committee shall be compensated in accordance with the provisions of section 3109 of
title 5, United States Code.
(4) The Secretary shall furnish to the Committee an executive secretary and such secretarial, clerical, and other
services as are deemed necessary to the conduct of its business
(b) An advisory committee may be appointed by the Secretary to assist h m in his standard-setting functions under
section 6 of this Act. Each such committee shall consist of not more than fifteen members and shall include as a
member one or more designees of the Secretary of Health and Human Services, and shall include among its members
an equal number of persons qualified by experience and affiliation to present the viewpoint of the employers involved,
and of persons similarly qualified to present the viewpoint of the workers involved, as well as one or more
representatives of health and safety agencies of the States. An advisory committee may also include such other persons
as the Secretary may appoint who are qualified by knowledge and experience to make a useful contribution to the work
of such committee, including one or more representatives of professional organizations of technic ans or professionals
specializing in occupational safety or health, and one or more representatives of nationally recognized standards
producing organizations, but the number of persons so appointed to any such advisory committee shall not exceed the
number appointed to such committee as representatives of Federal and State agencies. Persons appointed to advisory
committees from private life shall be compensated in the same manner as consultants or experts under section 3109 of
title 5, United States Code. The Secretary shall pay to any State which is the employer of a member of such a
committee who is a representative of the health or safety agency of that State, reimbursement sufficient to cover the
actual cost to the State resulting from such representative's membership on such committee. Any meeting of such
committee shall be open to the public and an accurate record shall be kept and made available to the public. No
member of such committee (other than representatives of employers and employees) shall have an economic interest in
any proposed rule
(c) In carrying out his responsibilities under this Act, the Secretary is authorized to --
( 1 ) use, with the consent of any Federal agency, the services, facilities, and personnel of such agency, with or
without reimbursement, and with the consent of any State or political subdivision thereof, accept and use the
services, facilities, and personnel of any agency of such State or subdivision with reimbursement; and
(2) employ experts and consultants or organizations thereof as authorized by section 3109 of title 5, United
States Code, except that contracts for such employment may be renewed annually; compensate individuals so
employed at rates not
n excess of the rate specified at the time of service for grade GS-18 under section 5332 of
title 5, United States Code, including trave
time, and allow them while away from their homes or regular places of
business, travel expenses (including per diem in lieu of subsistence) as authorized by section 5703 of title 5,
United States Code, for persons in the Government service employed intermittently, while so employed.
(d) There is established a Maritime Occupational
Safety and Health Advisory Committee, which shall be a continuing
body and shall provide advice to the Secretary in formulating maritime industry standards and regarding matters
pertaining to the administration of this
Act related to the maritime industry. The composition of such advisory committee
shall be consistent with the advisory committees established under subsection (b). A member of the advisory committee
who is otherwise qualified may continue to serve until a successor is appointed. The Secretary may promulgate or
amend regulations as necessary to implement this subsection.
29 USC 656
Bates081
SEC. 8. Inspections, Investigations, and Recordkeeping
(a)
In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the
29 USC 657
owner, operator, or agent in charge, is authorized --
( 1 ) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other
area, workplace or environment where work is performed by an employee of an employer; and
(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable
limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures,
machines, apparatus
devices, equipment, and materials therein, and to question privately any such employer,
owner, operator, agent or employee.
(b) In making his inspections and investigations under this Act the Secretary may require the attendance and testimony
of witnesses and the production of evidence under oath. Witnesses shall be paid the same fees and mileage that are
paid witnesses in the courts of the United States. In case of a contumacy, failure, or refusal of any person to obey such
an order, any district court of the United States or the United States courts of any territory or possession, within the
jurisdiction of which such person is found, or resides or transacts business, upon the application by the Secretary, shall
have jurisdiction to issue to such person an order requiring such person to appear to produce evidence if, as, and when
so ordered, and to give testimony relating to the matter under investigation or in question, and any failure to obey such
order of the court may be punished by said court as a contempt thereof.
(c)
( 1 ) Each employer shall make, keep and preserve, and make available lo the Secretary or the Secretary of
Health and Human Services, such records regarding his activities relating to this Act as the Secretary, in
cooperation with the Secretary of Health and Human Services, may prescribe by regulation as necessary or
appropriate for the enforcement of this Act or for developing information regarding the causes and prevention of
occupational accidents and illnesses. In order to carry out the provisions of this paragraph such regulations may
include provisions requiring employers to conduct periodic inspections. The Secretary shall also issue regulations
requiring that employers, through posling of notices or other appropriate means, keep their employees informed
of their protections and obligations under this Act, including the provisions of applicable standards.
(2) The Secretary, in cooperation with lhe Secretary of Health and Human Services, shall prescribe regulations
requiring employers to maintain
accurate records of, and to make periodic reports on, work-related deaths,
injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical
treatment, loss of consciousness, restriction of work or motion, or transfer to another job.
(3) The Secretary, in cooperation with lhe Secretary of Health and Human Services, shall issue regulations
requiring 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. Such regulations shall provide
employees or their representatives with an opportunity to observe such monitoring or measuring, and to have
access to the records thereof. Such regu ations shall also make appropr ate provision for each employee or
former employee to have access to such records as will indicate his own exposure to toxic materials or harmful
physical agents. Each employer shall promptly notify any employee who has been or is being exposed to toxic
materials or harmful physical agents in concentrat ons or at levels which exceed those prescribed by an
applicable occupational safety and health standard promulgated under section 6, and shall inform any employee
who
s being thus exposed of the corrective action being taken.
(d) Any information obtained by the Secretary, the Secretary of Health and Human Services, or a State agency under
this Act shall be obtained with a minimum burden upon employers, especially those operating small businesses.
Unnecessary duplication of efforts in obtaining information shall be reduced to the maximum extent feasible.
(e) Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by
his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the
physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there is no
authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable
number of employees concerning matters of health and safety in the workplace.
(f)
( 1 ) Any employees or representative of employees who believe that a violation of a safety or health standard
exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice
to the Secretary or his authorized representative of such violation or danger. Any such notice shall be reduced to
writing, shall set forth with reasonable particularity the grounds for the notice
and shall be signed by the
employees or representative of employees, and a copy shall be provided the employer or his agent no later than
at the time of
nspection, except that, upon the request of the person giving such notice, his name and the names
of individual employees referred to therein shall not appear in such copy or on any record published, released, or
made available pursuant to subsection (g) of this section. If upon receipt of such notification the Secretary
determines there are reasonable grounds to believe that such violation or danger exists, he shall make a special
inspection in accordance with the provisions of this section as soon as practicable, to determine if such violation
or danger exists. If the Secretary determines there are no reasonable grounds to believe that a violation or
danger exists he shal
notify the employees or representative of the employees in writing of such determination.
(2) Prior to or during any inspection of a workplace, any employees or representative of employees employed in
such workplace may notify the Secretary or any representative of the Secretary responsible for conducting the
Bates082
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Secretary shall, by regulation, establish procedures for informal review of any refusal by a representative of the
Secretary to issue a citation with respect to any such alleged violation and shall furnish the employees or
representative of employees requesting such review a written statement of the reasons for the Secretary's final
disposition of the case.
(g)
( 1 ) The Secretary and Secretary of Health and Human Services are authorized to compile, analyze, and publish,
either in summary or detailed form, all reports or information obtained under this section.
(2) The Secretary and the Secretary of Health and Human Services shall each prescribe such rules and
regulations as he may deem necessary to carry out their responsibilities under this Act, including rules and
regulations dealing with the inspection of an employer's establishment.
(h)
The Secretary shall not use the results of enforcement activities, such as the number of citations issued or
penalties assessed, to evaluate employees directly involved in enforcement activities under this Act or to
Pub. L.
impose quotas or goals with regard to the results of such activities.
added subsection
105-198
(h).
SEC. 9. Citations
(a)
If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer
has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to
29 USC 658
section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness
issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature
of the violation
includ ng a reference to the provision of the Act, standard, rule, regulation, or order alleged to
have been violated. In addition, the citation shall fix a reasonable time for the abatement of the v olation. The
Secretary may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis
violations which have no direct or immediate relationship to safety or health.
(b) Each citation issued under this section, or a copy or copies thereof, shall be prominently posted, as prescribed in
regulations issued by the Secretary, at or near each place a violation referred to in the citation occurred.
(c) No citation may be issued under this section after the expiration of six months following the occurrence of any
violation.
SEC. 10. Procedure for Enforcement
(a)
If, after an inspection or investigation, the Secretary issues a citation under section 9(a), he shall, within a
reasonable time after the termination of such inspection or investigation, notify the employer by certified mail
of the penalty, if any, proposed to be assessed under section 17 and that the employer has fifteen working
days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of
penalty. If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails
to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, and no notice
is filed by any employee or representative of employees under subsection (c) within such time, the citation and
the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by
any court or agency.
(b) lf the Secretary has reason to believe that an employer has failed to correct a violation for which a citation has been
issued within the period permitted for its correction (which period shall not begin to run until the entry of a final order by
the Comm ss on in the case of any review proceedings under this section initiated by the employer in good faith and not
solely for delay or avoidance of penalties), the Secretary shall notify the employer by certified mail of such failure and of
the penalty proposed to be assessed under section 17 by reason of such failure, and that the employer has fifteen
working days within which to notify the Secretary that he wishes to contest the Secretary's notification or the proposed
assessment of penalty. If, within fifteen working days from the receipt of notification issued by the Secretary, the
employer fails to notify the Secretary that he intends to contest the notification or proposed assessment of penalty, the
notification and assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by
any court or agency.
(c) If an employer notifies the Secretary that he intends to contest a citation issued under section 9(a) or notification
issued under subsection (a) or (b) of this
section, or if, within fifteen working days of the issuance of a citation under
section 9(a), any employee or representative of employees files a notice with the Secretary alleging that the period of
time fixed in the citation for the abatement of the violation is unreasonable, the Secretary shal
immediately advise the
Commission of such notification, and the Commission shall afford an opportunity for a hearing (in accordance with
section 554 of title 5, United States Code, but without regard to subsection (a)(3) of such section). The Commission
shall thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or
proposed penalty, or directing other appropriate relief, and such order shall become final thirty days after its issuance.
Upon a showing by an employer of a good faith effort to comply with the abatement requirements of a citation, and that
abatement has not been completed because of factors beyond his reasonable control, the Secretary, after an
opportunity for a hear ng as provided in this subsection, shall issue an order affirming or modifying the abatement
requirements in such citation. The rules of procedure prescribed by the Commission shall provide affected employees or
representatives of affected employees an opportunity to participate as parties to hearings under this subsection.
29 USC 659
Bates083
SEC. 1 1 . Judicial Review
(a)
Any person adversely affected or aggrieved by an order of the Commission issued under subsection (c) of
section 10 may obtain a review of such order in any United States court of appeals for the circuit in which the
29 USC 660
violation is alleged to have occurred or where the employer has its principal office, or in the Court of Appeals
for the District of Columbia Circuit, by filing in such court within sixty days following the issuance of such order
a written petition praying that the order be modified or set aside. A copy of such petition shalt be forthwith
transmitted by the clerk of the court to the Commission and to the other parties, and thereupon the
Commission shall file in the court the record in the proceeding as provided in section 2 1 1 2 of title 28, United
States Code. Upon such filing, the court shall have jurisdiction of the proceeding and of the question
determined therein, and shall have power to grant such temporary relief or restraining order as it deems just
and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth
n such record a
decree affirming, modifying, or setting aside in whole or in part, the order of the Commission and enforcing the
same to the extent that such order is affirmed or modified. The commencement of proceedings under this
subsection shall not, unless ordered by the court, operate as a stay of the order of the Commission. No
objection that has not been urged before the Commission shall be considered by the court, unless the failure
or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of
the Commission with respect to questions of fact, if supported by substantial evidence on the record
considered as a whole, shall be conclusive. If any party shall apply to the court for leave to adduce additional
evidence and shall show to the satisfaction of the court that such additional evidence is material and that there
were reasonable grounds for the fai ure to adduce such evidence in the hearing before the Commission, the
court may order such additional evidence to be taken before the Commission and to be made a part of the
record. The Commission may modify its findings as to the facts, or make new findings, by reason of additiona
evidence so taken and filed, and it shall file such modified or new findings, which findings with respect to
questions of fact, if supported by substantial evidence on the record considered as a whole, shall be
conclusive, and its recommendations, if any, for the modification or setting aside of its original order. Upon the
filing of the record with it, the jurisdiction of the court shall be exclusive and its judgment and decree shall be
final, except that the same shall be subject to review by the Supreme Court of the United States, as provided
in section 1254 of title 28, United States Code.
(b)
The Secretary may also obtain review or enforcement of any final order of the Commission by filing a petition
for such relief in the United States court of appeals for the circuit in which the alleged violation occurred or in
Pub. L. 98-620
which the employer has its principal office, and the provisions of subsection (a) shall govern such proceedings
to the extent applicable. If no petition for review, as provided in subsection (a), is filed within sixty days after
service of the Commission's order, the Commission's findings of fact and order shal
be conclusive in
connection with any petition for enforcement which is filed by the Secretary after the expiration of such sixty
day period. In any such case, as well as in the case of a noncontested citation or notification by the Secretary
which has become a final order of the Commission under subsection (a) or (b) of section 10, the clerk of the
court, unless otherwise ordered by the court, shall forthwith enter a decree enforcing the order and shall
transmit a copy of such decree to the Secretary and the employer named in the petition. In any contempt
proceeding brought to enforce a decree of a court of appeals entered pursuant to this subsection or
subsection (a), the court of appeals may assess the penalties provided in section 1 7 , in add tion to invoking
any other available remedies.
(c)
( 1 ) No person shall discharge or in any manner discriminate against any employee because such employee has
filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has
testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of
himself or others of any right afforded by this Act.
(2) Any employee who believes that he has been discharged or otherwise discriminated against by any person in
violation of this subsection may, within thirty days after such violation occurs, file a compla nt with the Secretary
alleging such discr mination. Upon receipt of such complaint, the Secretary sha l cause such investigation to be
made as he deems appropriate.
f upon such investigation, the Secretary determines that the provisions of this
subsection have been violated, he shall bring an action in any appropriate United States district court against
such person. In any such action the United States district courts shal
have jurisdiction, for cause shown to
restrain violations of paragraph ( 1 ) of this subsection and order all appropriate relief including rehiring or
reinstatement of the employee to his former position with back pay.
(3) Within 90 days of the receipt of a complaint filed under this subsection the Secretary shall notify the
complainant of his determination under paragraph 2 of this subsection.
SEC. 12. The Occupational Safety and Health Review Commission
(a)
The Occupational Safety and Health Review Commission is hereby established. The Commission shall be
composed of three members who shall be appointed by the President, by and with the advice and consent of
the Senate, from among persons who by reason of training, ed
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.