Recently, the US Congress voted to nullify
an OSHA Final Rule that expanded on the injury and illness recordkeeping and reporting requirements for employers. This is part of an ongoing effort to reverse, reconsider, or repeal EHS regulations created during the Obama administration.
But in order to create new regulations or repeal regulations already in place, OSHA must follow a lengthy, transparent process—the same process used to create the rules in the first place. Instead of discussing one specific rule, today we will talk about how OSHA navigates the rulemaking process in general.
First Thing’s First—What Is OSHA?
The Occupational Safety and Health Administration (OSHA) is the Federal agency responsible for implementing and enforcing safety and health standards in the workplace. The agency’s mission is one that is clear and to the point: “to assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.” Source: OSHA.gov
Federal regulations are created and modified in a seven-stage process that allows for public involvement, notice, and comment periods. Here we break down these seven stages to give you a clear view of the rulemaking process, and how industry stakeholders like you can get involved and have your voice heard.
Identify a Hazard (12 to 36 Months)
Since our focus here is OSHA, we begin Stage 1 of the process with the identification of a health or safety hazard. This may be a concern over employee exposure to a certain hazardous chemical in the workplace—as is the case with OSHA’s Hazard Communication rules at 29 CFR 1910.1200—or an occupational hazard that poses physical, biological, or ergonomic risks.
Once the hazard has been identified, then the next phase of Stage 1 is to conduct research and collect data to determine the scope of the problem. In other words, just how widespread is the “problem”? Is this hazard unique to one type of industry or does it impact a wide range of industry sectors?
As you might expect, Stage 1 requires analysis of many overlapping sets of data (e.g., health effects analysis, technological feasibility analysis, economic analysis). During this time, the agency also meets with both internal and external stakeholders, identifies the resources necessary for advisory committees, and publishes a Request for Information or Advanced Notice of Proposed Rulemaking (as needed).
The average time frame to complete Stage 1 is anywhere from 12 to 36 months.
Developing a Proposed Rule (12 to 36 Months)
Stage 2 is when OSHA develops its proposed rule. It is during this stage that the agency drafts the proposed regulatory text and preamble. In addition, OSHA continues to engage in discussions with stakeholders and consults with organizations representing potentially impacted industries, such as the construction industry or maritime industry.
The latter phases of Stage 2 involve obtaining the required clearances from within the agency as well as the Office of Management and Budget. As we saw with Stage 1, activities within Stage 2 take anywhere from 12 to 36 months to complete.
Obtain Approval and Publish the Proposed Rule (2 to 3 Months)
Stage 3 moves much more quickly than stages 1 or 2; it typically takes about two to three months. At this point in the rulemaking process, the agency is seeking to obtain approval to publish the proposed rule, as well as planning for hearings before the public. The proposed rule is also submitted to the Federal Register
for publication during Stage 3.
Receive and Review Public Comments (6 to 24 Months)
The timeframe in which the agency receives comments from the public occurs during the next phase, Stage 4. This is when public hearings are held and all written comments and testimony are reviewed and taken under consideration. Based upon the information compiled during this time, the agency then prepares a record summary and analysis. In general, Stage 4 spans anywhere from 6 to 24 months to complete.
Develop the Final Rule (18 to 36 Months)
Stage 5 is where the final rule is developed. Remember earlier when I mentioned several different types of analyses that needed to be addressed? Well, Stage 5 is where all the data from those analyses are finalized.
It is also during Stage 5 that the final regulatory text and preamble for the Rule are drafted and the agency prepares its rollout materials. Stage 5 takes about 18 to 36 months to complete.
Publish the Final Rule to the Federal Register (2 to 3 Months)
Stage 6 is the point at which OSHA publishes the Final Rule in the Federal Register
. The final rule is also sent to the Small Business Administration, Congress, and the Government Accountability Office. This stage in the process takes approximately two to three months to complete.
Outreach, Training, Directives, and Interpretations (4 to 12 Months)
The final stage, Stage 7, is when any and all post-promulgation activities are addressed. Essentially, this is the timeframe during which supplemental materials surface such as outreach and training materials, compliance directives, and letters of interpretation. Also during this time, OSHA responds to any legal actions relating to the Final Rule. Stage 7 typically spans anywhere from four to twelve months.
What’s Next from OSHA?
Twice a year, the Department of Labor publishes a list of all standards and regulations in the Federal Register
that are being worked on. These “regulatory agendas” are published in the fall and the spring and provide employers, employees, and any other interested parties with a means to track the progress of new or changing rules, as well as allow for public participation.
The DOL/OSHA topics that appeared on the Fall 2016 agenda are as follows:
- Bloodborne Pathogens (Pre-rule Stage)
- Combustible Dust (Pre-rule Stage)
- Preventing Backover Injuries and Fatalities (Pre-rule Stage)
- Infectious Diseases (Proposed Rule Stage)
- Occupational Exposure to Beryllium (Final Rule Stage)
- Injury and Illness Prevention Program (Long-term Actions)
Lastly, there is a web-based means for providing comments on all proposed rules, notices, and supporting/related materials, which can be found under the “Open for Comment” portion of the OSHA Law and Regulations page. Here, the public is provided with the opportunity to send an electronic comment to the agency by the specified comment period closure date.
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