Document Type
Article
Publication Date
2024
Abstract
This Article focuses on a special problem with performance standards - that their performance criteria are often so subjective as to deny regulated persons a clear idea of what is required. It begins with a discussion of specification and performance standards in American regulatory history. It further discusses attempts by Congress and others to, therefore, require that performance criteria be “objective.” The Article then sets out a case study of how congressional attempts to require “objective” performance criteria have fared. It examines in depth whether one agency, the Occupational Safety and Health Administration (OSHA), has complied with that special requirement and finds that many standards that OSHA has touted as performance standards fail to meet it. This Article also notes how, in rulemaking, OSHA has often styled many of its standards as “performance” standards that would give employers “flexibility” in compliance. It notes, however, that once enforcement begins, promises of such flexibility are often forgotten. The Article then raises some broader jurisprudential issues related to open textured performance standards. It concludes with the suggestion that in some regulatory situations, notwithstanding the arc of regulatory scholarship, specification standards may be more appropriate.
Recommended Citation
Marshall J. Breger & Arthur G. Sapper, Breach Of Faith: The Special Problem Of Osha Performance Standards, 76 Admin. L. Rev. 85 (2024).