OSHA’s Rulemaking Process:

Why Does it Take So Long?

A question I receive frequently is “Why does the OSHA setting of a standard take so long?”

The reasons are many. Multiple requirements – statutory, legislative, judicial, and administrative – combine to slow the standards development process.

I n a perfect world, OSHA should be able to issue a final standard, from start to finish, in just over four years – 52 months, to be exact. In the real world, however, OSHA standards generally take between eight and 10 years to become final.

One serious drawback in the standard-setting process is that a standard being developed as a priority for one administration is often not a priority for the next. For example, draft standards for crystalline silica and walking/working surfaces moved forward in one administration but were later shelved with a change in administrations, only to be reactivated with the next administration change. Shifting priorities add considerable time to the process.

OSHA’s web page breaks down the entire rulemaking process into seven basic steps, which we will go over in detail.

Our Full Comments Below:

One:

Phase 1:

OSHA makes the decision to conduct a rulemaking (12 to 36 months).

OSHA identifies a health or safety hazard. Note: Congress, NIOSH, or a professional association can identify a hazard; groups such as labor unions through litigation against OSHA can identify a hazard; or a specific hazard may surface through OSHA inspection data compiled by the agency. The identification of a hazard is required by internal OSHA procedures as the first step in conducting a rulemaking.

OSHA conducts research to gather data and information and determine the scope of a potential problem. Information sought by the agency includes health effects, risk assessments, technological feasibility, and an economic analysis. Required both by legal requirements and Executive Order.

OSHA meets with both external and internal stakeholders. Required by OSHA internal procedures, Executive Order, and legal requirements.

OSHA must identify regulatory and non-regulatory approaches to the identified hazards. Required by Executive Order.

The agency prepares a timeline, identifies internal resources, and determines the need for an advisory committee. Required by internal OSHA procedures.

OSHA prepares decision papers on moving forward and seeks executive approval to proceed. Required by internal OSHA procedures.

OSHA prepares documents to post the proposed rulemaking on OSHA’s Regulatory Agenda. Required by both Executive Order and legal requirements.

OSHA establishes a public rulemaking docket. Legally required.

OSHA develops and publishes a Request for Information (RFI) or an Advanced Notice of Proposed Rulemaking (ANPR), usually seeking answers from the regulated community on a series of questions. Note: This step is very important as it provides the first opportunity for the regulated community to comment on a developing OSHA standard. This is a legal requirement for OSHA.

Two:

Phase 2:

OSHA develops the proposed standard (12 to 36 months).

If it is a health standard, OSHA develops a health effects analysis. Required by Executive Order and legal requirements.

OSHA conducts a preliminary risk assessment. Required by Executive Order and legal requirements.

OSHA develops a preliminary technological feasibility analysis. Required by Executive Order and legal requirements.

The Agency develops a preliminary economic and regulatory feasibility analysis. Required by Executive Order and legal requirements.

Proposed regulatory text for the standard and preamble are drafted. This is a legal requirement.

OSHA initiates a Federalism and Unfunded Mandates analysis and the agency makes a preliminary determination of the impact on state, local, and tribal governments. Required by Executive Order and legal requirements.

OSHA prepares a preliminary information collection analysis. This is a legal requirement for OSHA.

OSHA continues discussions with stakeholders. Required by Executive Order, OSHA internal procedures, and legal requirements.

OSHA consults with the construction advisory committee as legally required. OSHA consults with the Maritime Advisory Committee as required by OSHA procedures. There is no requirement for OSHA to consult with the National Advisory Committee for Safety and Health.

The SBA calls a Small Business Regulatory Enforcement Committee (SBREFA) to review the impact of the standard on small businesses. This is a legal requirement.

For an OSHA health standard, the agency conducts another analysis of the health effects, does a preliminary risk assessment, and preliminary economic analysis. This is required under Executive Order.

OSHA obtains clearances from all federal agencies and departments. This is an internal OSHA requirement – OSHA wants to make sure any standard it is working on does not conflict with other agencies’ work.

OSHA submits the proposed standard and preamble to the proposed standard to OMB for review and clearance. Required by Executive Order.

Three:

Phase 3:

The proposed standard is published (two to three months).

OSHA obtains permission from OMB to publish. Required by Executive Order.

OSHA plans for public hearings on the proposed standard as legally required.

The proposed standard is submitted to the Federal Register for publication (includes electronic publication) as legally required.

OSHA submits a preliminary information collection request to OMB as legally required.

The proposed standard is sent to the Small Business Administration for review by the SBREFA panel as legally required.

Four:

Phase 4:

After receipt of public comments OSHA begins developing and analyzing the Rule Making Record (six to 24 months).

The agency receives comments; prepares for and holds public meetings or hearings; and closes the public record. This is required legally and under internal OSHA procedures.

OSHA reviews and analyzes all written comments, exhibits, and testimony. This is required legally and under internal OSHA procedures.

The record is prepared in summary and analysis. This is required legally and under internal OSHA procedures.

Five:

Phase 5:

OSHA develops the final standard (18 to 36 months).

OSHA will update and finalize the health effects analysis for a health standard. The agency also will update and finalize the risk assessment. Required legally and by Executive Order.

The agency then will update and finalize the technological feasibility assessment and the economic and regulatory flexibility analysis. Required legally and by Executive Order.

The draft final regulatory text and the standard preamble are completed. This is legally required.

OSHA completes the federalism and unfunded mandates analysis and makes a final determination on the impact the new standard will have on state, local, and tribal governments. Required legally and by Executive Order.

OSHA obtains final internal agency clearances from the Department of Labor. Internal OSHA procedural requirement.

The draft final standard and the preamble to the standard are submitted to OMB for review. Required by Executive Order.

OSHA’s last step for Phase 5 is to prepare the final information collection and prepare for the roll out of the final standard. Required legally.

Six:

Phase 6:

OSHA publishes the final standard (two to three months).

The agency obtains approval from all sources to publish the final standard. Required under internal OSHA procedures.

The standard and preamble are submitted to the Federal Register for publication as legally required.

The information request is submitted to OMB as legally required.

The final standard is sent to the Small Business Administration as legally required.

The standard and preamble are sent to both Congress and the General Accountability Office. Required legally.

The standard is published.

Seven:

Phase 7:

Post-promulgation activities (four to 12 months).

OSHA develops and publishes a small entity compliance guide as well as other outreach and training materials, develops a compliance directive, and issues letters of interpretation. Required both legally and under internal OSHA procedures.

OSHA begins responding to legal action(s).

Summary:

S o… what is one to do? Under ideal circumstances it takes over four years to get a new OSHA standard out. Simply updating a standard takes the same amount of time because OSHA has to follow the same process. For example, the RFI for the Lockout/Tagout (LOTO) rule is currently at OMB. Once it is released, OSHA is likely to allow 60 days for people to review it and provide comments to OSHA. This RFI is, in my mind, an important one as the technology for LOTO has substantially advanced since the original LOTO standard was issued. I know a lot of employers who either want to use ‒ or are already using ‒ the newer technology and are hopeful that they will be legally allowed to do so. However, it seems likely that it will be four years before OSHA can issue an updated standard.

Clearly, the standard-setting process needs to be revised. As its requirements are governed by a combination of the OSH Act, legislation, and Executive Order, this will not be an easy task. However, the need to update existing standards is critical and it should be one of the agency’s top priorities. Most of OSHA’s existing standards originated in the 1950s and 1960s and were adopted by OSHA in 1971. The process needs to be fixed so OSHA can quickly move forward and update these older standards. Unfortunately, the only way I can see this being done is through legislation or an update of the OSH Act, neither of which seems likely at the moment.