Professor Marshall Breger recently published an article in the American Bar Association's 76 Administrative Law Review titled "Breach of Faith: The Special Problem of OSHA Performance Standards." The article was co-authored by Arthur G. Sapper and looks at performance standards through the lens of the Occupational Safety and Health Administration (OSHA).

The leading administrative law journal in the United States, the Administrative Law Review is the law review of the ABA Administrative Law and Regulatory Practice Section with a circulation of over 8,000. Professor Breger teaches administrative law at Catholic Law. Under George H. W. Bush he was Solicitor of Labor with responsibility inter alia for legal matters related to OSHA.

Click here to view the article, and below is the introduction.

INTRODUCTION

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.