JUSTICE BRENNAN delivered the opinion of the Court.
Congress enacted the Occupational Safety and Health Act of 1970 (Act) "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions. . . ." § 2 (b), 84 Stat. 1590, 29 U. S. C. § 651 (b). The Act authorizes the Secretary of Labor to establish, after notice and opportunity to comment, mandatory nationwide standards governing health and safety in the workplace. 29 U. S. C. §§ 655 (a), (b). In 1978, the Secretary, acting through the Occupational Safety and Health Administration
Petitioners in these consolidated cases, representing the interests of the cotton industry,
Byssinosis, known in its more severe manifestations as "brown lung" disease, is a serious and potentially disabling respiratory disease primarily caused by the inhalation of cotton dust.
While there is some uncertainty over the manner in which the disease progresses from its least serious to its disabling grades, it is likely that prolonged exposure contributes to the progression. 43 Fed. Reg. 27354, cols. 1 and 2 (1978); Exhibit
Estimates indicate that at least 35,000 employed and retired cotton mill workers, or 1 in 12 such workers, suffer from the most disabling form of byssinosis.
Not until the early 1960's was byssinosis recognized in the United States as a distinct occupational hazard associated with cotton mills. S. Rep. No. 91-1282, supra, at 3, Leg.
In 1974, ACGIH, adopting a new measurement unit of respirable rather than total dust, lowered its previous exposure
On December 28, 1976, OSHA published a proposal to replace the existing federal standard on cotton dust with a new permanent standard, pursuant to § 6 (b) (5) of the Act, 29 U. S. C. § 655 (b) (5). 41 Fed. Reg. 56498. The proposed standard contained a PEL of 200 μg/m of vertical elutriated lint-free respirable cotton dust for all segments of the cotton industry. Ibid. It also suggested an implementation strategy for achieving the PEL that relied on respirators for the short term and engineering controls for the long term. Id., at 56506, cols. 2 and 3. OSHA invited interested parties to submit written comments within a 90-day period.
Following the comment period, OSHA conducted three hearings in Washington, D. C., Greenville, Miss., and Lubbock, Tex., that lasted over 14 days. Public participation was widespread, involving representatives from industry and the work force, scientists, economists, industrial hygienists, and many others. By the time the informal rulemaking procedure had terminated, OSHA had received 263 comments and 109 notices of intent to appear at the hearings. 43 Fed. Reg. 27351, col. 2 (1978). The voluminous record, composed of a transcript of written and oral testimony, exhibits, and posthearing comments and briefs, totaled some 105,000 pages. 199 U. S. App. D. C., at 65, 617 F. 2d, at 647. OSHA issued its final Cotton Dust Standard—the one challenged in the instant case—on June 23, 1978. Along with an accompanying statement of findings and reasons, the Standard occupied 69 pages of the Federal Register. 43 Fed. Reg. 27350-27418 (1978); see 29 CFR § 1910.1043 (1980).
The Cotton Dust Standard promulgated by OSHA establishes
OSHA chose an implementation strategy for the Standard that depend primarily on a mix of engineering controls, such as installation of ventilation systems,
On the basis of the evidence in the record as a whole, the Secretary determined that exposure to cotton dust represents a "significant health hazard to employees," 43 Fed. Reg. 27350, col. 1 (1978), and that "the prevalence of byssinosis should be significantly reduced" by the adoption of the Standard's PEL's, id., at 27359, col. 3. In assessing the health risks from cotton dust and the risk reduction obtained from lowered exposure, OSHA relied particularly on data showing a strong linear relationship between the prevalence of byssinosis and the concentration of lint-free respirable cotton dust. Id., at 27355-27359; Exhibit 6-51, App. 29-55. See also Ex. 6-17, Ct. of App. J. A. 235-245; Ex. 38D, id., at 1492-1839. Even at the 200 μg/m PEL, OSHA found that the prevalence of at least Grade 1/2 byssinosis would be 13% of all employees in the yarn manufacturing sector. 43 Fed. Reg. 27359, cols. 2 and 3 (1978).
In promulgating the Cotton Dust Standard, OSHA interpreted the Act to require adoption of the most stringent standard to protect against material health impairment, bounded only by technological and economic feasibility. Id., at 27361, col. 3. OSHA therefore rejected the industry's alternative proposal for a PEL of 500 μg/m in yarn manufacturing, a proposal which would produce a 25% prevalence of at least Grade 1/2 byssinosis. The agency expressly found the Standard to be both technologically and economically feasible
The Court of Appeals upheld the Standard in all major respects.
We affirm in part, and vacate in part.
The principal question presented in these cases is whether the Occupational Safety and Health Act requires the Secretary, in promulgating a standard pursuant to § 6 (b) (5) of the Act, 29 U. S. C. § 655 (b) (5), to determine that the costs of the standard bear a reasonable relationship to its benefits. Relying on §§ 6 (b) (5) and 3 (8) of the Act, 29 U. S. C. §§ 655 (b) (5) and 652 (8), petitioners urge not only that OSHA must show that a standard addresses a significant risk of material health impairment, see Industrial Union Dept. v. American Petroleum Institute, 448 U. S., at 639 (plurality opinion), but also that OSHA must demonstrate that the reduction in risk of material health impairment is significant in light of the costs of attaining that reduction. See Brief for Petitioners in No. 79-1429, pp. 38-41.
The starting point of our analysis is the language of the statute itself. Steadman v. SEC, 450 U.S. 91, 97 (1981); Reiter v. Sonotone Corp., 442 U.S. 330, 337 (1979). Section 6 (b) (5) of the Act, 29 U. S. C. § 655 (b) (5) (emphasis added), provides:
Although their interpretations differ, all parties agree that the phrase "to the extent feasible" contains the critical language in § 6 (b) (5) for purposes of these cases.
The plain meaning of the word "feasible" supports respondents' interpretation of the statute. According to Webster's Third New International Dictionary of the English Language 831 (1976), "feasible" means "capable of being
A more recent example is the Outer Continental Shelf Lands Act Amendments of 1978, 43 U. S. C. § 1347 (b) (1976 ed., Supp. III), providing that offshore drilling operations shall use
These and other statutes
Even though the plain language of § 6 (b) (5) supports this construction, we must still decide whether § 3 (8), the general definition of an occupational safety and health standard, either alone or in tandem with § 6 (b) (5), incorporates a cost-benefit requirement for standards dealing with toxic materials or harmful physical agents. Section 3 (8) of the Act, 29 U. S. C. § 652 (8) (emphasis added), provides:
Taken alone, the phrase "reasonably necessary or appropriate" might be construed to contemplate some balancing of the costs and benefits of a standard. Petitioners urge that, so construed, § 3 (8) engrafts a cost-benefit analysis requirement on the issuance of § 6 (b) (5) standards, even if § 6 (b) (5) itself does not authorize such analysis. We need not decide whether § 3(8), standing alone, would contemplate some form of cost-benefit analysis. For even if it does, Congress specifically chose in § 6 (b) (5) to impose separate and additional requirements for issuance of a subcategory of occupational safety and health standards dealing with toxic materials and harmful physical agents: it required that those standards be issued to prevent material impairment of health to the extent feasible. Congress could reasonably have concluded that health standards should be subject to different criteria than safety standards because of the special problems presented in regulating them. See Industrial Union Dept. v. American Petroleum Institute, 448 U. S., at 649, n. 54 (plurality opinion).
The legislative history of the Act, while concededly not crystal clear, provides general support for respondents' interpretation of the Act. The congressional Reports and debates certainly confirm that Congress meant "feasible" and nothing else in using that term. Congress was concerned that the Act might be thought to require achievement of absolute safety, an impossible standard, and therefore insisted that health and safety goals be capable of economic and technological accomplishment. Perhaps most telling is the absence of any indication whatsoever that Congress intended OSHA to conduct its own cost-benefit analysis before promulgating a toxic material or harmful physical agent standard. The legislative history demonstrates conclusively that Congress was fully aware that the Act would impose real and substantial costs of compliance on industry, and believed that such costs were part of the cost of doing business. We thus turn to the relevant portions of the legislative history.
Neither the original Senate bill, S. 2193, 91st Cong., 1st Sess. (1969), introduced by Senator Williams, nor the original House bill, H. R. 16785, 91st Cong., 2d Sess. (1970), introduced by Representative Daniels, included specific provisions
The Senate Committee on Labor and Public Welfare, reporting on the Williams bill, included a provision virtually identical to the House version, except for the additional requirement that the Secretary set the standard "which most adequately and feasibly assures . . . that no employee will suffer any impairment of health." Id., at 242 (the Senate provision was numbered § 6 (b) (5)) (emphasis added). This addition to the Williams bill was offered by Senator Javits, who explained his amendment:
Thus the Senator's concern was that a standard might require "absolute health and safety" without any consideration as to whether such a condition was achievable. The full Senate Committee also noted that standards promulgated under this provision "shall represent feasible requirements," S. Rep. No. 91-1282, at 7, Leg. Hist. 147, and commented that "[s]uch standards should be directed at assuring, so far as possible, that no employee will suffer impaired health . . . ." ibid. (emphasis added).
In the ensuing floor debate on this issue, Senator Dominick reiterated his concern that "[i]t is unrealistic to attempt. as [the Committee's § 6 (b) (5)] apparently does, to establish a utopia free from any hazards. Absolute safety is an impossibility . . . ." 116 Cong. Rec. 37614 (1970), Leg. Hist. 480.
Senator Dominick failed in his efforts to have the first sentence of § 6 (b) (5) deleted. However, after working with Senators Williams and Javits, he introduced an amended version of the first sentence which he thought was "agreeable to all" and which became § 6 (b) (5) as it now appears in the Act. 116 Cong. Rec., at 37622, Leg. Hist. 502. This amendment limited the applicability of § 6 (b) (5) to "toxic materials and harmful physical agents," changed "health impairment" to "material impairment of health," and deleted the reference to "diminished life expectancy." Significantly, the feasibility requirement was left intact in the statute. Instead of the phrase "which most adequately and feasibly assures," the amendment merely substituted "which most adequately assures, to the extent feasible," to emphasize that the feasibility requirement operated as a limit on the promulgation of standards under § 6 (b) (5).
Senator Dominick believed that his modifications made clearer that attainment of an absolutely safe working environment could not be achieved through "prohibition of the occupation itself," Leg. Hist. 367, and that toxic material and harmful physical agent standards should not address frivolous harms that exist in every workplace. The feasibility requirement, along with the need for a "material impairment of health," were thus thought to satisfy these two concerns. He explained the effect of the amendment:
Senator Williams added that the amendment "will provide a continued direction to the Secretary that he shall be required to set the standard which most adequately and to the greatest extent feasible assures" that no employee will suffer any material health impairment. 116 Cong. Rec., at 37622, Leg. Hist. 503. The Senate thereafter passed S. 2193. One week later, the House passed a substitute bill which failed to contain any substantive criteria for the issuance of health standards in place of its original bill. 116 Cong. Rec., at 38716-38717, Leg. Hist. 1094-1096. At the joint House-Senate Conference, however, the House conferees acceded to the Senate's version of § 6 (b) (5).
Not only does the legislative history confirm that Congress meant "feasible" rather than "cost-benefit" when it used the former term, but it also shows that Congress understood that
Senator Eagleton commented that "[t]he costs that will be incurred by employers in meeting the standards of health and safety to be established under this bill are, in my view, reasonable and necessary costs of doing business." 116 Cong. Rec., at 41764, Leg. Hist. 1150-1151 (emphasis added).
Other Members of Congress voiced similar views.
Senator Eagleton summarized: "Whether we, as individuals, are motivated by simple humanity or by simple economics, we can no longer permit profits to be dependent upon an unsafe or unhealthy worksite." 116 Cong. Rec. 41764 (1970), Leg. Hist. 1150-1151.
Section 6 (f) of the Act provides that "[t]he determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole." 29 U. S. C. § 655 (f). Petitioners contend that the Secretary's determination that the Cotton Dust Standard is "economically feasible" is not supported by substantial evidence in the record considered as a whole. In particular, they claim (1) that OSHA underestimated the financial costs necessary to meet the Standard's requirements; and (2) that OSHA incorrectly found that the Standard would not threaten the economic viability of the cotton industry.
In statutes with provisions virtually identical to § 6 (f) of the Act, we have defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB,
OSHA derived its cost estimate for industry compliance with the Cotton Dust Standard after reviewing two financial analyses, one prepared by the Research Triangle Institute (RTI), an OSHA-contracted group, the other by industry representatives (Hocutt-Thomas).
OSHA rejected RTI's cost estimate of $1.1 billion for textile industry engineering controls for three principal reasons.
In light of these deficiencies in the RTI study, OSHA adopted the Hocutt-Thomas estimate for textile industry engineering controls of $543 million,
Petitioners criticize OSHA's adoption of the Hocutt-Thomas estimate, since that estimate was based on achievement of somewhat less stringent PEL's than those ultimately promulgated in the final Standard.
Therefore, whether or not in the first instance we would find the Secretary's conclusions supported by substantial evidence, we cannot say that the Court of Appeals in this case
After estimating the cost of compliance with the Cotton Dust Standard, OSHA analyzed whether it was "economically feasible" for the cotton industry to bear this cost.
RTI evaluated the likely economic impact on the cotton industry and the United States' economy of OSHA's original proposed standard, an across-the-board 200 μg/m PEL. Ex. 6-76, Ct. of App. J. A. 626.
In reaching this conclusion, RTI analyzed the total and annual economic impact
Through an output demand elasticity analysis, RTI determined that price increases necessitated by the 200 μg/m standard would result in a 1.68% contraction of cotton yarn consumption.
Relying on its comprehensive economic evaluation of the cotton industry's ability to absorb the $2.7 billion compliance cost of a 200 μg/m PEL standard, RTI concluded that "nothing in the RTI study indicates that the cotton textile industry as a whole will be seriously threatened." Ex. 16, id., at 1380.
The Court of Appeals found that the agency "explained the economic impact it projected for the textile industry," and that OSHA has "substantial support in the record for its . . . findings of economic feasibility for the textile industry." 199 U. S. App. D. C., at 80, 617 F. 2d, at 662. On the basis of the whole record, we cannot conclude that the Court of Appeals "misapprehended or grossly misapplied" the substantial evidence test.
The final Cotton Dust Standard places heavy reliance on the use of respirators to protect employees from exposure to cotton dust, particularly during the 4-year interim period necessary to install and implement feasible engineering controls.
Respondents urge several statutory bases for the authority exercised here. They cite § 2 (b) of the Act, 29 U. S. C. § 651 (b), which declares that the purpose of the Act is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions"; § 2 (b) (5), which suggests achievement of the purpose "by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems"; § 6 (b) (5), which requires the agency to "set the standard which most adequately assures . . . that no employee will suffer material impairment of health or functional capacity . . ."; and § 3 (8), which provides that a standard must require "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." Brief for Federal Respondent 68. Whatever methods these provisions authorize OSHA to apply, it is clear that such methods must be justified on the basis of their relation to safety or health.
Section 6 (f) of the Act, 29 U. S. C. § 655 (f), requires that "determinations of the Secretary" must be supported by substantial evidence. Section 6 (e), 29 U. S. C. § 655 (e), requires the Secretary to include "a statement of the reasons for such action, which shall be published in the Federal Register." In his "Summary and Explanation of the Standard," the Secretary stated: "Each section includes an analysis of the record evidence and the policy considerations underlying the decisions adopted pertaining to specific provisions of the standard." 43 Fed. Reg. 27380, col. 2 (1978). But OSHA never explained the wage guarantee provision as an approach designed to contribute to increased health protection. Instead the agency stated that the "goal of this provision is to minimize any adverse economic impact on the employee by virtue of the inability to wear a respirator." Id., at 27387,
See Brief for Union Respondents 51.
Whether these arguments have merit, and they very well may,
When Congress passed the Occupational Safety and Health Act in 1970, it chose to place pre-eminent value on assuring employees a safe and healthful working environment, limited only by the feasibility of achieving such an environment. We must measure the validity of the Secretary's actions against the requirements of that Act. For "[t]he judicial function does not extend to substantive revision of regulatory
Accordingly, the judgment of the Court of Appeals is affirmed in all respects except to the extent of its approval of the Secretary's application of the wage guarantee provision of the Cotton Dust Standard at 29 CFR § 1910.1043 (f) (2) (v) (1980). To that extent, the judgment of the Court of Appeals is vacated and the case remanded with directions to remand to the Secretary for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE POWELL took no part in the decision of these cases.
JUSTICE STEWART, dissenting.
Section 6 (b) (5) of the Occupational Safety and Health Act provides:
The simple truth about OSHA's assessment of the cost of the Cotton Dust Standard is that the agency never relied on any study or report purporting to predict the cost to industry of the Standard finally adopted by the agency. OSHA did have before it one cost analysis, that of the Research Triangle Institute, which attempted to predict the cost of the final Standard. However, as recognized by the Court, ante, at 524-525, the agency flatly rejected that prediction as a gross overestimate. The only other estimate OSHA had, the Hocutt-Thomas estimate prepared by industry researchers, was not designed to predict the cost of the final OSHA Standard. Rather, it assumed a far less stringent and inevitably far less costly standard for all phases of cotton production except roving. Ante, at 527, n. 50. The agency examined the Hocutt-Thomas study, and concluded that it too was an overestimate of the costs of the less stringent standard it was addressing. I am willing to defer to OSHA's determination that the Hocutt-Thomas study was such an overestimate, conceding that such subtle financial and technical matters lie within the discretion and skill of the agency. But in a remarkable non sequitur, the agency decided that because the Hocutt-Thomas study was an overestimate of the cost of a less stringent standard, it could be treated as a reliable estimate for the more costly final Standard actually promulgated, never rationally explaining how it came to this happy
Of course, as the Court notes, this Court will re-examine a court of appeals' review of a question of substantial evidence "only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied." Universal Camera Corp. v. NLRB, 340 U.S. 474, 491. But I think this is one of those rare instances where an agency has categorically misconceived the nature of the evidence necessary to support a regulation, and where the Court of Appeals has failed to correct the agency's error. Of course, broad generalizations about the meaning of "substantial evidence" have limited value in deciding particular cases. But within the confines of a single statute, where the agency and reviewing courts have identified certain specific factual matters to be proved, we can establish practical general criteria for comprehending "substantial evidence."
Unlike the Court, I think it clear to the point of being obvious that, as a matter of law, OSHA's prediction of the cost of the Cotton Dust Standard lacks a basis in substantial evidence, since the agency did not rely on even a single estimate of the cost of the actual Standard it promulgated. Accordingly, I respectfully dissent.
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
A year ago I stated my belief that Congress in enacting § 6 (b) (5) of the Occupational Safety and Health Act of 1970 unconstitutionally delegated to the Executive Branch the authority to make the "hard policy choices" properly the task of the legislature. Industrial Union Dept. v. American Petroleum Institute, 448 U.S. 607, 671 (1980) (concurring in judgment). Because I continue to believe that the Act exceeds Congress' power to delegate legislative authority to nonelected officials, see J. W. Hampton & Co. v. United
I will repeat only a little of what I said last Term. Section 6 (b) (5) provides in pertinent part:
As the Court correctly observes, the phrase "to the extent feasible" contains the critical language for the purpose of these cases. We are presented with a remarkable range of interpretations of that language. Petitioners contend that the statute requires the Secretary to demonstrate that the benefits of its "Cotton Dust Standard," in terms of reducing health risks, bear a reasonable relationship to its costs. Brief for Petitioners in No. 79-1429, pp. 38-41. Respondents, including the Secretary of Labor at least until his postargument motion, counter that Congress itself balanced costs and benefits when it enacted the statute, and that the statute prohibits the Secretary from engaging in a cost-benefit type balancing. Their view is that the Act merely requires the Secretary to promulgate standards that eliminate or reduce such risks "to the extent . . . technologically or economically feasible." Brief for Federal Respondent 38; Brief for Union Respondents 26-27. As I read the Court's opinion, it takes a different position. It concludes that, at least as to the "Cotton Dust Standard," the Act does not require the Secretary to engage in a cost-benefit analysis, which suggests of course that the Act permits the Secretary to undertake such an analysis if he so chooses. Ante, at 510-512.
But Congress did not enact that statute. The legislative history of the Act reveals that a number of Members of Congress, such as Senators Javits, Saxbe, and Dominick, had difficulty with the proposed statute and engaged Congress in a lengthy debate about the extent to which the Secretary should be authorized to create a risk-free work environment. Congress had at least three choices. It could have required the Secretary to engage in a cost-benefit analysis prior to the setting of exposure levels, it could have prohibited cost-benefit analysis, or it could have permitted the use of such an analysis. Rather than make that choice and resolve that difficult policy issue, however, Congress passed. Congress simply said that the Secretary should set standards "to the extent feasible." Last year, JUSTICE POWELL reflected that
The Court seems to argue that Congress did make a policy choice when it enacted the "feasibility" language. Its view is that Congress required the Secretary to engage in something called "feasibility analysis." Ante, at 509. But those words mean nothing at all. They are a "legislative mirage, appearing to some Members [of Congress] but not to others, and assuming any form desired by the beholder." American Petroleum Institute, supra, at 681. Even the Court does not settle on a meaning. It first suggests that the language requires the Secretary to do what is "capable of being done." Ante, at 508-509. But, if that is all the language means, it is merely precatory and "no more than an admonition to the Secretary to do his duty . . . ." Leg. Hist. 367 (remarks of Sen. Dominick). The Court then seems to adopt the Secretary's view that feasibility means "technological and economic feasibility." But there is nothing in the words of § 6 (b) (5), or their legislative history, to suggest why they should be so limited. One wonders why the "requirement" of § 6 (b) (5) could not include considerations of administrative or even political feasibility. As even the Court recognizes, when Congress has wanted to limit the concept of feasibility to technological and economic feasibility, it has said so. Ante, at 510. Thus the words "to the extent feasible" provide no meaningful guidance to those who will administer the law.
In sum, the Court is quite correct in asserting that the phrase "to the extent feasible" is the critical language for the purposes of these cases. But that language is critical, not because it establishes a general standard by which those charged
"[Grade] 1/2: slight acute effect of dust on ventilatory capacity; no evidence of chronic ventilatory impairment.
"[Grade] 1: definite acute effect of dust on ventilatory capacity; no evidence of chronic ventilatory impairment.
"[Grade] 2: evidence of slight to moderate irreversible impairment of ventilatory capacity.
"[Grade] 3: evidence of moderate to severe irreversible impairment of ventilatory capacity." Exhibit 6-27, App. 25; see 41 Fed. Reg. 56500-56501 (1976).
"When they started speeding the looms up the dust got finer and more and more people started leaving the mill with breathing problems. My mother had to leave the mill in the early fifties. Before she left, her breathing got so short she just couldn't hold out to work. My step-father left the mill on account of breaching [sic] problems. He had coughing spells til he couldn't breath [sic], like a child's whooping cough. Both my sisters who work in the mill have breathing problems. My husband had to give up his job when he was only fifty-four years old because of the breathing problem." Ct. of App. J. A. 3791.
"I suppose I had a breathing problem since 1973. I just kept on getting sick and began losing time at the mill. Every time that I go into the mill I get deathly sick, choking and vomiting losing my breath. It would blow down all that lint and cotton and I have clothes right here where I have wore and they have been washed several times and I would like for you all to see them. That will not come out in washing.
"I am only fifty-seven years old and I am retired and I can't even get to go to church because of my breathing. I get short of breath just walking around the house or dressing [or] sometimes just watching T. V. I cough all the time." Id., at 3793.
". . . I had to quit because I couldn't lay down and rest without oxygen in the night and my doctor told me I would have to get out of there . . . . I couln't [sic] even breathe, I had to get out of the door so I could breathe and he told me not to go back in [the mill] under any circumstances." Id., at 3804.
Byssinosis is not a newly discovered disease, having been described as early as in the 1820's in England, App. 404-405, and observed in Belgium in a study of 2,000 cotton workers in 1845, Exhibit 6-16, App. 15.
"[T]he assumption is often made that the disorder progresses from 1/2 to 1 to 2 to 3 and, thus, all grades reflect the progress of the individual's disability. In many instances, however, there is no progression at all. Sometimes Grade 3 seems to appear de novo, or there is a jump from 1 to 3. Among those who develop permanent disability, Grade 2 very often never occurs." Exhibit 41, App. 192.
"Studies of particular industries provide specific emphasis regarding the magnitude of the problem. For example, despite repeated warnings over the years from other countries that their cotton workers suffered from lung disease, it is only within the past decade that we have recognized byssinosis as a distinct occupational disease among workers in American cotton mills." S. Rep. 91-1282, p. 3 (1970), Leg. Hist. 143.
"[T]he Secretary shall, as soon as practicable during the period beginning with the effective date of this chapter and ending two years after such date, by rule promulgate as an occupational safety or health standard. . . 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."
The nontextile industries covered by the Standard's 500 μg/m PEL include, but are not limited to, "warehousing, compressing of cotton lint, classing and marketing, using cotton yarn (i. e. knitting), reclaiming and marketing of textile manufacturing waste, delinting of cottonseed, marketing and converting of linters, reclaiming and marketing of gin motes and batting, yarn felt manufacturing using waste cotton fibers and by products." Id., at 27360, col. 3.
At oral argument, and in a letter addressed to the Court after oral argument, petitioners contended that the Secretary's recent amendment of OSHA's so-called "Cancer Policy" in light of this Court's decision in Industrial Union Dept. v. American Petroleum Institute, 448 U.S. 607 (1980), was relevant to the issues in the present cases. We disagree.
OSHA amended its Cancer Policy to "carry out the Court's interpretation of the Occupational Safety and Health Act of 1970 that consideration must be given to the significance of the risk in the issuance of a carcinogen standard and that OSHA must consider all relevant evidence in making these determinations." 46 Fed. Reg. 4889, col. 3 (1981). Previously, although lacking such evidence as dose-response data, the Secretary presumed that no safe exposure level existed for carcinogenic substances. Industrial Union Dept. v. American Petroleum Institute, supra, at 620, 624-625, 635-636, nn. 39 and 40 (plurality opinion). Following this Court's decision, OSHA deleted those provisions of the Cancer Policy which required the "automatic setting of the lowest feasible level" without regard to determinations of risk significance. 46 Fed. Reg. 4890, col. 1 (1981).
In distinct contrast with its Cancer Policy, OSHA expressly found that "exposure to cotton dust presents a significant health hazard to employees," 43 Fed. Reg. 27350, col. 1 (1978), and that "cotton dust produced significant health effects at low levels of exposure," id., at 27358, col. 2. In addition, the agency noted that "grade 1/2 byssinosis and associated pulmonary function decrements are significant health effects in themselves and should be prevented in so far as possible." Id., at 27354, col. 2. In making its assessment of significant risk, OSHA relied on dose-response curve data (the Merchant Study) showing that 25% of employees suffered at least Grade 1/2 byssinosis at a 500 μg/m PEL, and that 12.7% of all employees would suffer byssinosis at the 200 μg/m PEL standard. Id., at 27358, cols. 2 and 3. Examining the Merchant Study in light of other studies in the record, the agency found that "the Merchant study provides a reliable assessment of health risk to cotton textile workers from cotton dust." Id., at 27357, col. 3. OSHA concluded that the "prevalence of byssinosis should be significantly reduced" by the 200 μg/m PEL. Id., at 27359, col. 3; see id., at 27359, col. 1 ("200 μg/m represents a significant reduction in the number of affected workers"). It is difficult to imagine what else the agency could do to comply with this Court's decision in Industrial Union Dept. v. American Petroleum Institute.
"First, OSHA must make a responsible determination of the costs and risk reduction benefits of its standard. Pursuant to the requirement of Section 6 (f) of the Act, this determination must be factually supported by substantial evidence in the record. The subsequent determination whether the reduction in health risk is `significant' (based upon the factual assessment of costs and benefits) is a judgment to be made by the agency in the first instance." Id., at 40.
Respondent Secretary disputes petitioners' description of the exercise, claiming that any meaningful balancing must involve "placing a [dollar] value on human life and freedom from suffering," Brief for Federal Respondent 59, and that there is no other way but through formal cost-benefit analysis to accomplish petitioners' desired balancing, id., at 59-60. Cost-benefit analysis contemplates "systematic enumeration of all benefits and all costs, tangible and intangible, whether readily quantifiable or difficult to measure, that will accrue to all members of society if a particular project is adopted." E. Stokey & R. Zeckhauser, A Primer for Policy Analysis 134 (1978); see Commission on Natural Resources, National Research Council, Decision Making for Regulating Chemicals in the Environment 38 (1975). See generally E. Mishan, Cost-Benefit Analysis (1976); Prest & Turvey, Cost-Benefit Analysis, 300 Economic Journal 683 (1965). Whether petitioners' or respondent's characterization is correct, we will sometimes refer to petitioners' proposed exercise as "cost-benefit analysis."
"First, whether the `place of employment is unsafe—in the sense that significant risks are present and can be eliminated or lessened by a change in practices.' [Industrial Union Dept., supra, at 642 (plurality opinion).] Second, whether of the possible available correctives the Secretary has selected `the standard . . . that is most protective.' Ibid. Third, whether that standard is `feasible.'" Brief for Union Respondents 40-41.
We will sometimes refer to this test as "feasibility analysis."
"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."
In other statutes, Congress has used the phrase "unreasonable risk," accompanied by explanation in legislative history, to signify a generalized balancing of costs and benefits. See, e. g., the Consumer Product Safety Act of 1972, 15 U. S. C. § 2056 (a) ("unreasonable risk of injury"); H. R. Rep. No. 92-1153, p. 33 (1972) (where the House stated: "It should be noted that the Commission's authority to promulgate standards under this bill is limited to instances where the hazard associated with a consumer product presents an unreasonable risk of death, injury, or serious or frequent illness. . . . Protection against unreasonable risks is central to many Federal and State safety statutes and the courts have had broad experience in interpreting the term's meaning and application. It is generally expected that the determination of unreasonable hazard will involve the Commission in balancing the probability that risk will result in harm and the gravity of such harm against the effect on the product's utility, cost, and availability to the consumer"); S. Rep. No. 92-749, pp. 14-15 (1972). See also Aqua Slide `N' Dive Corp. v. Consumer Product Safety Comm'n, 569 F.2d 831, 839 (CA5 1978); Forester v. Consumer Product Safety Comm'n, 182 U. S. App. D. C. 153, 168, 559 F.2d 774, 789 (1977). The error of several cases finding a cost-benefit analysis mandate in the Act is their reliance on the different language and clear legislative history of the Consumer Product Safety Act to reach their conclusions. See Texas Independent Ginners Assn. v. Marshall, 630 F.2d 398, 410 (CA5 1980); American Petroleum Institute v. OSHA, 581 F.2d 493, 502-503 (CA5 1978), aff'd on other grounds, Industrial Union Dept. v. American Petroleum Institute, supra.
Senator Chiles was sufficiently certain that the Act did not contemplate cost-benefit analysis that he introduced an amendment in 1973 that, inter alia, "directs the Secretary to recognize the cost-benefit ratio in promulgating a new standard and to publish information relative to the projected financial impact. This provision will promote the development of standards justifiable in terms of the benefits to be derived and afford those to be affected an opportunity to make a reasoned evaluation of the proposal." 119 Cong. Rec. 42151 (1973).
From this slim reed petitioners fashion their legislative history argument. But even if Senator Javits fully subscribed to statements by President Nixon on the proposed legislation, of which there is some doubt, see id., at 22512, this hardly supports the view that the Senator's addition of the feasibility requirement to the Williams bill included any such baggage. After all, the Senator described his amendment only with the word "feasible," and specifically distinguished the amended Williams bill from the administration's, on the basis of the latter's lack of criteria.
"[L]et us take a fellow who is a streetcar conductor or a bus conductor at the present time. How in the world, in the process of the pollution we have in the streets or in the process of the automobile accidents that we have all during a working day of anyone driving a bus or trolley car, or whatever it may be, can we set standards that will make sure he will not have any risk to his life for the rest of his life? It is totally impossible for this to be put in a bill; and yet it is in the committee bill." 116 Cong. Rec. 37337 (1970), Leg. Hist. 423. See also 116 Cong. Rec., at 37614, 36522, Leg. Hist. 481, 345.
"unavailability of professional or technical personnel or of necessary materials or equipment or because necessary construction or alteration of facilities cannot be completed on time. . . . Such an order may be issued for a maximum period of one year and may not be renewed more than twice." Ibid.
"There is a provision in the bill which recognizes the impact that this particular legislation may have on small businesses. . . . It permits the Secretary to make loans to small businesses wherever the standards that are set by the National Government are so severe as to have caused a real and substantial economic injury. Under those circumstances the Secretary is entitled, through the Small Business Administration, to make loans to those businesses to get them over the hump, because of the need for new equipment, or because of new conditions within the shop, which would permit them to continue in operation.
"I think that is a very significant and important provision for minimizing economic injury which could occur if the bill resulted in situations which would have very serious effects on businesses." 116 Cong. Rec. 37631 (1970), Leg. Hist. 525.
"Although many employers in all industries have demonstrated an exemplary degree of concern for health and safety in the workplace, their efforts are too often undercut by those who are not so concerned. Moreover, the fact is that many employers—particularly smaller ones— simply cannot make the necessary investment in health and safety, and survive competitively, unless all are compelled to do so." S. Rep. 91-1282, p. 4 (1970), Leg. Hist. 144.
"Although I am very much disturbed over adding new costs to the operation of our production facilities because of the threats from abroad, I would say there is a greater concern and that must be for the production men who do the producing—the men who work in the service industries and the men and women in this country who daily go out and keep the economy moving and make it safe for all of us to live and to work and to be able to prosper in it."
"[B]y continuing to upgrade plants with the most modern and efficient equipment, the textile manufacturing industry will likely not be required due to demand to add much in the way of new bricks and mortar. There may be some individual cases of out-of-date facilities being replaced by new buildings; but for the most part, I believe we will see more in the way of modernization of existing plants . . . ." Ex. 63, id., at 2260 (emphasis added).
One study explained why the costs of controls should be lower if a mill converts to new equipment as opposed to retrofitting old machines:
"1) The operating cost of new equipment with controls on that equipment is less than the operating cost of the old equipment with controls necessary for the older, slower equipment to meet proscribed [sic] dust levels; and 2) by going to newer equipment with controls there is a likelihood that increased production rates will result in recovery of some or all of the capital cost of control." Ex. 79A, id., at 2532; see Ex. 79C, id., at 2550-2551; Ex. 63, id., at 2261; Ex. 78, id., at 2376-2377.
"Well, I'm beginning to wish I hadn't said anything about this, which I did, and I have to be helpful. Practically all of this information that I have is confidential and I couldn't reveal any of the sources. You can only take my word for the figures. I can't substantiate it in any manner." Id., at 3929.
Petitioners note, however, that the industry subsequently provided its survey data to OSHA, and that the only information deleted was confidential information withheld by agreement with the agency in order to prevent identification of specific mills. Reply Brief for Petitioners in No. 79-1429, p. 23, n. 32; see App. 388-390. OSHA responds that, "[b]ecause the number of machines was deleted and correlated dust data were not supplied, the data could not be used to support a specific cost adjustment." Brief for Federal Respondent 64, n. 70. In any event, no contention is made that OSHA had access to Hocutt's own data used to calculate his cost estimate.
Even if the Secretary had wanted to obtain a cost estimate based on confidential industry data for the actual PEL's in the adopted Standard, he would have been unable to do so. Hocutt had concluded that it was technologically impractical to achieve PEL's below 500 μg/m for the operations of spinning through warping, Ex. 60, Ct. of App. J. A. 2239-2241, and PEL's below 1,000 μg/m for weaving and slashing, id., at 2241-2243. Therefore, he declined to prepare cost estimates of a 200 μg/m PEL for those operations. The Secretary obviously disagreed with his judgment of technological feasibility. We also note that, although petitioners challenged the technological feasibility of the final Cotton Dust Standard in the Court of Appeals, they have abandoned such challenge here. Brief for Petitioners in No. 79-1429, p. 8, n. 16.
"OSHA must present a responsible prediction, supported by substantial evidence, of what its standard will cost and what impact it will have on such factors as production, employment, competition, and prices. And the agency must explain in a cogent manner—on the basis of intelligible criteria—why it concludes that a standard having such an economic impact is `feasible.'" Id., at 35 (footnote omitted).
As our review of OSHA's economic feasibility determination demonstrates, OSHA presented a "responsible prediction" of what its Standard would cost and its impact on "production, employment, competition, and prices." The agency concluded that its Standard is feasible because "compliance with [it] is well within the financial capability of the covered industries." 43 Fed. Reg. 27379, col. 3 (1978). OSHA also found that the industry "will be able to meet the demands for production of cotton products." Id., at 27378, col. 2. We take these findings to mean, as the Secretary suggests, that "[a]t bottom, the Secretary must [and did] determine that the industry will maintain long-term profitability and competitiveness." Brief for Federal Respondent 49. See also United Steelworkers of America v. Marshall, 208 U. S. App. D. C. 60, 136, 647 F.2d 1189, 1265 (1981) ("the practical question is whether the standard threatens the competitive stability of an industry"); Industrial Union Dept. v. Hodgson, 162 U. S. App. D. C., at 342, 499 F. 2d, at 478. This interpretation by the Secretary is certainly consistent with the plain meaning of the word "feasible." See Industrial Union Dept. v. American Petroleum Institute, 448 U. S., at 717-718, n. 30 (MARSHALL, J., dissenting). Therefore, these cases do not present, and we do not decide, the question whether a standard that threatens the long-term profitability and competitiveness of an industry is "feasible" within the meaning of § 6 (b) (5) of the Act, 29 U. S. C. § 655 (b) (5).
"1) Additional employment requirements.
"2) Energy consumption.
"3) Increases in production costs and consequent price increases by affected industries.
"4) Capital requirements and capital financing problems.
"5) Competition effects on profit and market structure.
"6) Inflationary impact on consumers and U. S. economy.
"7) Employment impact due to the contraction of output demand."
Ex. 6-76, Ct. of App. J. A. 626.
RTI also examined the economic impact of two other across-the-board PEL's of 500 μg/m and 100 μg/m. Ibid.
In any event, RTI subsequently investigated short-term price elasticities of demand for 25 cotton consumer products, finding that 19 of them had elasticities less than or equal to unity. Id., at 681.
"Where the use of respirators is required under this section, the employer shall provide, at no cost to the employee, and assure the use of respirators which comply with the requirements of this paragraph (f). Respirators shall be used in the following circumstances:
"(i) During the time periods necessary to install or implement feasible engineering controls and work practice controls;
"(ii) During maintenance and repair activities in which engineering and work practice controls are not feasible;
"(iii) In work situations where feasible engineering and work practice controls are not yet sufficient to reduce exposure to or below the permissible exposure limit; and
"(iv) In operations specified under paragraph (g) (1);
"(v) Whenever an employee requests a respirator."
"Whenever a physician determines that an employee is unable to wear any form of respirator, including a power air purifying respirator, the employee shall be given the opportunity to transfer to another position which is available or which later becomes available having a dust level at or below the PEL. The employer shall assure that an employee who is transferred due to an inability to wear a respirator suffers no loss of earnings or other employment rights or benefits as a result of the transfer."
"There is reluctance very often among the employee himself to leave his job. I think clearly some guarantees as to wages and opportunities must be an integral part of any recommendation to relocate somebody and it has been the experience in coal mining where miners are allowed, under the Coal Mine Health and Safety Act of 1968, to be transferred, a very low proportion of these men actually exercise their transfer rights." Id., at 441.
However, the courts will not be expected to scrutinize the record to uncover and formulate a rationale explaining an action, when the agency in the first instance has failed to articulate such rationale. See Automotive Parts & Accessories Assn. v. Boyd, 132 U. S. App. D. C. 200, 208, 407 F.2d 330, 338 (1968).