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Road to rulemaking

The steps OSHA takes to issue a new standard

The process OSHA follows to promulgate a regulation can be measured in years or, in some cases, decades.

Experts and OSHA alike believe issuing a final rule should take as little as five years, but a 2012 Government Accountability Office report found that the average time is more than seven years. The report, which examined the length of time OSHA took to develop and issue rules between 1981 and 2010, concluded some standards took as long as 19 years to be issued.

To many people in the occupational safety and health field, this is too long to wait for rules that would help protect workers and save lives. GAO, OSHA and stakeholders all point to a variety of steps in the promulgation process that may lead to delays, including congressional requirements for OSHA and presidentially mandated steps.

“As the process has matured, it’s gotten more and more bogged down and taken longer to get anything done,” said Tom O’Connor, executive director of the National Council for Occupational Safety and Health, a Los Angeles-based federation of local and statewide nonprofit occupational safety and health coalitions.

National COSH is calling for the standards-setting process to be “fundamentally reformed” to allow OSHA to update outdated standards. But not everyone agrees that the slow regulatory process is solely to blame, considering the number of steps OSHA must go through.

“I can’t identify really anything right now that as a policy matter should be dropped out of the procedure,” said Adam Finkel, former director of Health Standards Programs for OSHA, where he was tasked with promulgating and evaluating health standards. “On the other hand, I’m thoroughly disgusted with the slow pace.”

Finkel currently is the senior fellow and executive director of the Penn Program on Regulation, and professor of environmental and occupational health at the University of Medicine and Dentistry of New Jersey’s School of Public Health. The blame for the slow process rests within OSHA itself, he said, alleging a lack of will to move forward on rulemakings and a lack of resources to meet requirements.

Federal requirements

OSHA must comply with several requirements in its pursuit of rulemakings.

Regulatory Flexibility Act

Requires OSHA to publish with a proposed rule the proposal certification that the rule would not pose a “significant economic impact on a substantial number of small entities.” Barring that, the proposed rule must contain an estimate of the impact the rule would have on small businesses, as well as a description of alternatives to minimize the rule’s impact. In a final rule, OSHA must address the comments received and explain why alternatives were rejected.

Executive Order 12866v

Any regulatory action that could cost the economy $100 million or more annually must be submitted to the Office of Information and Regulatory Affairs – within the White House’s Office of Management and Budget – before being published, along with the rule’s requirements and a cost-benefit assessment of the rule.

Small Business Regulatory Enforcement Fairness Act

Requires OSHA to work with the Small Business Administration to form panels made up of affected small businesses, and publish their recommendations if the panels conclude the proposed rule will have a significant impact on small businesses.

Source: Government Accountability Office


Preliminary activities

According to the Occupational Safety and Health Act, OSHA can choose to proceed on a potential rule based on several different sources, including employers or employees, consensus standards-setting organizations, other administration officials, or other information developed internally.

Several potential standards OSHA currently is pursuing can be traced to these sources. For example, a proposed rulemaking addressing backing vehicles originated when the Advisory Committee on Construction Safety and Health began investigating injuries related to such incidents.

Generally, once OSHA decides to pursue or update a standard, the agency will solicit comments from stakeholders.

For its proposed Injury and Illness Prevention Program Standard, the agency hosted stakeholder meetings. In the late 1990s, OSHA issued a Request for Information on reducing the risk of exposure to bloodborne pathogens due to needlestick injuries.

OSHA also may choose to publish an advance notice of proposed rulemaking. It did so in 2009 for combustible dust, soliciting written comments in addition to hosting stakeholder meetings.

OSHA can choose to simply publish in its semiannual regulatory agenda an intent to pursue the regulation.

Because of this, some stakeholders have criticized RFIs and ANPRMs for being duplicative of the public hearing that comes later in the process, after the proposed rule is published.

“We can’t even propose a rule without having three or four steps beforehand,” Finkel said.

The result, he said, is that while OSHA spends time requesting information, the science and economics of the proposed rule move faster than the rulemaking process.

Although Finkel acknowledged that receiving additional perspective on a proposal is a good idea, he said RFIs and ANPRMs can become an excuse to start a long, unnecessary “extra” process. RFIs also have been used as a means to delay the rulemaking process, according to Randy Rabinowitz, director of regulatory policy for the Washington-based Center for Effective Government (formerly OMB Watch).

However, RFIs and ANPRMs are not inherently bad or good, and can serve an important purpose, Rabinowitz said. A legitimate reason for using an RFI is to obtain input from stakeholders other than the “usual suspects” through publication in the Federal Register, she said.

OSHA believes RFIs and ANPRMs provide “tremendously valuable input,” an agency spokesperson told Safety+Health.

“Each of these approaches has strengths and weaknesses when the agency is gathering information to determine what actions, if any, to take on a particular issue,” the spokesperson said.

RFIs and ANPRMs allow increased public participation, provide an opportunity for stakeholders to give longer and more thoughtful responses, and increase transparency by having the materials published on the public docket, the spokesperson noted.

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