The OSHA rulemaking process

Before OSHA can issue or revise a standard, it must go through an extensive and lengthy process that includes substantial public engagement, notice, and comment periods. This is known as OSHA’s “rulemaking process.”

OSHA can begin standards-setting procedures on its own initiative or in response to petitions from other parties, including:

• The Secretary of Health and Human Services (HHS);
• The National Institute for Occupational Safety and Health (NIOSH);
• State and local governments;
• Nationally recognized standards-producing organizations and employer or labor representatives; and
• Any other interested parties

The first stage in OSHA’s rulemaking process is to identify a hazard for which rulemaking is needed; this can be done in a variety of ways, but commonly it occurs when there have been numerous injuries or exposures. Also during this time, OSHA will conduct research to identify the scope and feasibility of the rulemaking, as well as meet with various internal and external stakeholders. The Agency will also prepare a timeline for rulemaking, identify resources needed, as well as the need for any advisory committees. Upon executive approval, the Agency may begin the rulemaking and formally publish the plan of action.

This phase usually takes between 12 and 36 months.

Next, OSHA must develop several analyses and assessments, largely to determine the economic and regulatory impact the rule will have. They also begin drafting the proposed regulatory text. If the rule will have an impact on small business, the Agency must convene a small business review panel, and may also conduct a peer review, advisory committee meetings, and stakeholder discussions. Once departmental clearances have been granted, the proposed rule goes to the Office of Management and Budget (OMB) for review and clearance.

This process usually takes between 12 and 36 months.

Once approval to publish has been given, the Agency will plan for public hearings and submit the proposed text to the Federal Register. This part of the process usually takes around 3 months.

OSHA is required to take and analyze public comments on proposed rules and prepare a record summary and analysis, which can take 6 to 24 months.

OSHA updates many of the analyses from earlier in the process. They then draft the final regulatory text and preamble. The rule again must go to OMB for review and clearance.

This stage takes 18 to 36 months. After that, the rule can be published in the Federal Register. Note: At this stage, final rules usually have a phase-in period to give employers time to prepare to comply.