Long OSHA rulemaking process gives everyone a voice

Last time, I wrote about the standards-writing process in OSHA. This article will pick up the discussion where I left off, with the proposed rule published and OSHA staff ready for comments on their work.

Concurrent with sending the proposed rule to the Federal Register for printing, OSHA must also send copies to the Small Business Administration, OSHA Regional Offices and State Plan states. Additionally, a package outlining the paperwork requirements for the rule is sent to the Office of Management and Budget.

The public comment phase of rulemaking is next in the process. Generally, the proposed standards allow somewhere from 30 to 90 days for public comment, depending on the complexity of the rule. Realistically, it often takes much longer for the initial public comment period to end, because OSHA usually honors requests for extension of the comment period, and there usually are several requests for an extension. Many employers explain that they need additional time to evaluate and discuss the proposed rule internally, or to collect supporting data for their comments. The agency benefits from well-considered, thoughtful comments on proposed standards; therefore extensions are often granted.

OSHA reviews and evaluates initial comments once received. Often, employers request a public hearing, such as the recent hearing on proposed electric power generation, transmission, and distribution; electrical protective equipment standard that I mentioned in the last article. And, there are instances when more than one public hearing is necessary.

These forums provide OSHA and employers the mutual opportunity to ask questions in a setting that allows follow-up questions. These follow-up questions help to illuminate issues and, sometimes, eliminate misunderstandings, for both sides. OSHA has often held these public hearings in locations around the country to allow a greater number of employers to participate.

When the hearings are complete, which can take several months if multiple hearings in different locations are needed, OSHA personnel evaluate post-hearing briefs, testimony and comments received. The proposed rule is then modified if the evidence is sufficient to warrant a change. Sometimes, there are unresolved issues or new issues that are discovered through the comment and review process. This may require that the record be reopened to gather additional comments or information.

When the public comment period and post-hearing comment periods are complete, and the record closed and certified, OSHA continues drafting the new final rule. This involves several layers of technical and legal review. Additionally, the economic analysis, feasibility analysis, and risk assessment will be updated during this time, once the final regulatory language is determined. An updated OSHA estimate of the amount of paperwork that a regulation will require of an employer, called a paperwork burden package, is developed also.

The paperwork package and a copy of the final rule will go again to OMB. Sometimes OMB will ask for changes, and the draft regulation will be revised and resubmitted for approval. OSHA also prepares a compliance guide for the SBA as required under the Small Business Regulatory Flexibility Act.

Once all the approvals are received, the document is ready to be signed by the OSHA administrator. The rule is sent to the Federal Register for publication, and copies are sent to the states and OSHA Regional Offices.