Occupational Safety and Health Standards; Interpretation of the General Duty Clause: Limitation for Inherently Risky Professional Activities

DEPARTMENT OF LABOR <SUBAGY>Occupational Safety and Health Administration</SUBAGY> <CFR>29 CFR Part 1975</CFR> <DEPDOC>[Docket No. OSHA-2025-0041]</DEPDOC> <RIN>RIN 1218-AD71</RIN> <SUBJECT>Occupational Safety and Health Standards; Interpretation of the General Duty Clause: Limitation for Inherently Risky Professional Activities</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Occupational Safety and Health Administration (OSHA), Labor. <HD SOURCE="HED">ACTION:</HD> Proposed rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> OSHA proposes to clarify its interpretation of the General Duty Clause, 29 U.S.C. 654(a)(1), to exclude from enforcement known hazards that are inherent and inseparable from the core nature of a professional activity or performance. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before September 2, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> <E T="03">Written comments:</E> You may submit comments and attachments, identified by Docket No. OSHA-2025-0041, electronically at <E T="03">https://www.regulations.gov,</E> which is the Federal e-Rulemaking Portal. Follow the instructions online for making electronic submissions. <E T="03">Instructions:</E> All submissions must include the agency's name and the docket number for this rulemaking (Docket No. OSHA-2025-0041). When uploading multiple attachments to <E T="03">https://www.regulations.gov,</E> please number all of your attachments because <E T="03">https://www.regulations.gov</E> will not automatically number the attachments. This will be very useful in identifying all attachments. For example, Attachment 1—title of your document, Attachment 2—title of your document, Attachment 3—title of your document. For assistance with commenting and uploading documents, please see the Frequently Asked Questions on <E T="03">https://www.regulations.gov.</E> All comments, including any personal information you provide, are placed in the public docket without change and may be made available online at <E T="03">https://www.regulations.gov.</E> Therefore, OSHA cautions commenters about submitting information they do not want made available to the public or submitting materials that contain personal information (either about themselves or others), such as Social Security Numbers and birthdates. <E T="03">Docket:</E> The docket for this rulemaking (Docket No. OSHA-2025-0041) is available at <E T="03">https://www.regulations.gov,</E> the Federal eRulemaking Portal. Most exhibits are available at <E T="03">https://www.regulations.gov;</E> some exhibits ( <E T="03">e.g.,</E> copyrighted material) are not available to download from that web page. However, all materials in the dockets are available for inspection at the OSHA Docket Office. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> <E T="03">For press inquiries:</E> Contact Frank Meilinger, Director, OSHA Office of Communications, Occupational Safety and Health Administration; telephone: (202) 693-1999; email: <E T="03">meilinger.francis2@dol.gov.</E> <E T="03">General information and technical inquiries:</E> Contact Andrew Levinson, Director, OSHA Directorate of Standards and Guidance, Occupational Safety and Health Administration; telephone: (202) 693-1950; email: <E T="03">osha.dsg@dol.gov.</E> <E T="03">Copies of this</E> <E T="7462">Federal Register</E> <E T="03">notice:</E> Electronic copies are available at <E T="03">https://www.regulations.gov.</E> This <E T="04">Federal Register</E> notice, as well as news releases and other relevant information, also are available at OSHA's web page at <E T="03">https://www.osha.gov.</E> A “100-word summary” is also available on <E T="03">https://www.regulations.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. Background</FP> <FP SOURCE="FP-2">II. Discussion</FP> <FP SOURCE="FP-2">III. Economic Analysis</FP> <FP SOURCE="FP-2">IV. Procedural Issues and Regulatory Review</FP> <FP SOURCE="FP1-2">A. Review Under Executive Order 12866</FP> <FP SOURCE="FP1-2">B. Review Under the Regulatory Flexibility Act</FP> <FP SOURCE="FP1-2">C. Review Under the Paperwork Reduction Act</FP> <FP SOURCE="FP1-2">D. Review Under Executive Order 13132</FP> <FP SOURCE="FP1-2">E. Review Under Executive Order 12899</FP> <FP SOURCE="FP1-2">F. Review Under the Unfunded Mandate Reform Act</FP> <FP SOURCE="FP1-2">G. Review Under the Treasury and General Government Appropriations Act, 2001</FP> <FP SOURCE="FP1-2">H. Review Under Executive Order 12630</FP> <FP SOURCE="FP1-2">I. Review Under the Treasury and General Government Appropriations Act, 2001</FP> <FP SOURCE="FP1-2">J. Requirements for States With OSHA-Approved State Plans</FP> <FP SOURCE="FP1-2">K. Environmental Impacts/National Environmental Policy Act (NEPA)</FP> <FP SOURCE="FP1-2">L. Review Under Additional Executive Orders and Presidential Memoranda</FP> <FP SOURCE="FP-2">V. Authority and Signature</FP> <FP SOURCE="FP-2">VI. Regulatory Text</FP> </EXTRACT> <HD SOURCE="HD1">I. Background</HD> Section 5(a)(1) of the Occupational Safety and Health Act (OSH Act)—commonly referred to as the General Duty Clause—requires that each employer furnish a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. 654(a)(1). This provision has historically functioned as an enforcement mechanism when no specific OSHA standard applies to a particular hazard. In <E T="03">SeaWorld of Florida, LLC</E> v. <E T="03">Perez,</E> 748 F.3d 1202 (D.C. Cir. 2014), OSHA relied on the General Duty Clause to prohibit SeaWorld from exposing its trainers to the recognized hazard of close contact with orca whales during live performances. The D.C. Circuit upheld the citation, holding that Seaworld was required to abate the hazard by requiring a barrier or minimum distance between trainers and orcas. <E T="03">Id.</E> at 1215. But then-Judge Brett Kavanaugh dissented, arguing that the General Duty Clause does not authorize OSHA to regulate hazards arising from normal activities that are intrinsic to professional, athletic, or entertainment occupations. <E T="03">Id.</E> at 1217 (Kavanaugh, J., dissenting). In light of the issues raised in that dissent and subsequent developments in administrative and constitutional law, OSHA has reexamined its authority under Section 5(a)(1). The agency now preliminarily concurs with the dissent's concerns. This Notice of Proposed Rulemaking (NPRM) responds to those concerns and codifies the principle that the General Duty Clause does not authorize OSHA to prohibit, restrict, or penalize inherently risky activities that are intrinsic to professional, athletic, or entertainment occupations. <HD SOURCE="HD1">II. Discussion</HD> Then-Judge Brett Kavanaugh's <E T="03">SeaWorld</E> dissent argued that OSHA's attempt to regulate the inherent risks of SeaWorld's animal performances raised serious questions about the scope of the agency's delegated authority under the Occupational Safety and Health (OSH) Act. He concluded: <EXTRACT> The Congress that enacted the Act in 1970 was certainly aware of the hazards in many popular sports such as football, baseball, ice hockey, and boxing. It was also well aware of the hazards in entertainment shows such as the circus. Yet . . . Congress did not in any way indicate or even hint that the Clause's vague terms encompassed an implicit grant of authority to the Department of Labor to regulate and re-make some undefined swath of America's sports and entertainment behemoth. In the real world, it is simply not plausible to assert that Congress, when passing the Occupational Safety and Health Act, silently intended to authorize the Department of Labor to eliminate familiar sports and entertainment practices, such as punt returns in the NFL, speeding in NASCAR, or the whale show at SeaWorld. <E T="03">See FDA</E> v. <E T="03">Brown & Williamson Tobacco Corp.,</E> 529 U.S. 120, 160 (2000) (“[W]e are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.”). </EXTRACT> This reasoning presaged what has since become binding Supreme Court doctrine. In <E T="03">National Federation of Independent Business</E> v. <E T="03">OSHA,</E> 142 S. Ct. 661 (2022), the Supreme Court invalidated OSHA's vaccine-or-test mandate, holding that the agency had exceeded its statutory authority under the OSH Act. The Court emphasized that OSHA was asserting regulatory power over a question of vast “economic and political significance” without a clear congressional mandate. This principle—now known as the major questions doctrine—requires that Congress speak clearly when authorizing an agency to decide issues of significant national consequence. The Court reaffirmed this doctrine in <E T="03">West Virginia</E> v. <E T="03">EPA,</E> 142 S. Ct. 2587 (2022), striking down EPA's Clean Power Plan, and <E T="03">Biden</E> v. <E T="03">Nebraska,</E> 600 U.S. 477 (2023), striking down the Department of Education's loan-forgiveness plan. As applied here, OSHA's use of the General Duty Clause to regulate professional activities that are inherently risky and central to entire sectors of the economy ( <E T="03">e.g.,</E> professional sports, marine shows, stunt performance) and could implicate the major questions doctrine if that authority were broadly exercised. These are not ordinary workplace hazards, but policy-sensitive judgments with far-reaching consequences for culture, commerce, and individual liberty. The General Duty Clause, enacted in 1970, contains no specific delegation or language suggesting th ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 38k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━