Why does OSHA’s rulemaking process take so long to complete?
The news this week at OSHA involves the hearings on the proposed Electric Power Generation, Transmission, and Distribution; Electrical Protective Equipment standard. This proposed standard was published in the Federal Register on June 15, 2005. The proposed rule would update the standards on electric power generation, transmission, and distribution and on electrical protective equipment for general industry and construction.
The hearings took place recently over about a week and a half (there are a lot of items to discuss). However, this is a good opportunity to discuss OSHA’s rule making process, and explain the reasons why it takes some time to publish a standard.
Prior to moving into enforcement, I wrote safety standards for about 15 years. I was involved in different phases of the work on several different standards; 29 CFR 1910.146, Permit-Required Confined Spaces and the 1990 proposed standard on Walking and Working Surfaces; Personal Protective Equipment (Fall Protection Systems) were two of the standards where I had most of my experience. Over the years, the way standards were promulgated changed. Some standards were issued in “plain language”. Others used negotiated rule-making.
Regardless, the one thing in common was that standards often took a long time to promulgate. Today, that fact is not likely to change. The standards writing process is a slow one for good reason, as I will explain.
Each standard starts with identifying a hazard. In some cases, those hazards were identified for us, sometimes even before the existence of OSHA. When OSHA was created, Congress gave the agency the authority to adopt existing industry, government or consensus standards. Many of these standards were added to 29 CFR, the regulations regarding health and safety in the workplace. Some of the regulations that OSHA has published or will publish are updates of these early standards. In other cases, OSHA has identified or been informed of hazards which the Agency believed needed to be addressed by rulemaking.
Once OSHA identifies a hazard and/or industry that the agency believes requires regulation, OSHA employees begin to research the subject. They search the existing scientific or industry literature and arrange meetings with individuals, government agencies, and sometimes international organizations. A site visit may be necessary to see the work procedures. Once the background work is finished, OSHA can make an informed decision on whether a standard is needed. Sometimes, rather than immediately developing a proposal, OSHA issues an Advance Notice of Proposed Rule making to solicit more information before.
If a standard is necessary, then work on a proposal proceeds. If this rule is considered to be “significant” as defined by Executive Order 12866, a Small Business Regulatory Flexibility Act Panel will be required. As work continues, the OSHA field offices and State plans have input in the process. OSHA is also required by the Paperwork Reduction Act to perform an analysis of the paperwork burden resulting from the rule.
Provided the proposed rule has survived so far, the Office of Management and Budget provides review. OMB may have questions, comments, or ask for changes. After any changes are made, the document may be signed by the Assistant Secretary.
This is the process for a general industry standard (for a construction standard, the process is slightly different) until the proposed standard is issued. Once the proposed standard is signed and published, the process becomes even more oriented toward public input and comment. I’ll leave that for my next column.