The Rulemaking Roadmap

To begin with, the rulemaking process is a vast, extensive, and time-and-efforts-consuming process. The Occupational Safety and Health Administration (OSHA) has to perform a huge amount of tasks and get over a number of steps on the rulemaking road.

The Government Accountability Office (GAO) has examined the time frames spent by OSHA on the rulemaking process. The GAO analyzed

“the 58 significant health and safety standards OSHA issued between 1981 and 2010 and found that the time frames for developing and issuing them averaged about 93 months (7 years, 9 months), and ranged from 15 months to about 19 years” (Workplace safety and health, 2012, p. 6).

The fastest OSHA standard was developed and issued over the period of 15 months and 19 years was ‘the longest time cost’ of the OSHA standard. According to Moran (Workplace safety and health, 2012), “the process OSHA uses to develop and issue standards is spelled out in the OSH Act” (p. 5).

The rulemaking roadmap consists of six main stages which require approximate total time from four and a half to nine years: preliminary rulemaking activities (nine – twenty four months), development of the proposed rule (twenty four – thirty six months), publication of the proposed rule (two – twelve months), analysis of the rulemaking record (four – twelve months), development of the final rule (twelve – twenty four months), and The Office of Management and Budget’s (OMB’s OIRA review and publication of the final rule (four months) (OSHA law & regulations, 2013).

The defined stages are quite extensive and are subdivided into gradual steps (Regulation Room, 2013). The preliminary rulemaking activities are begun with the step of the statutory authorization. A statute delegates to an agency the authority to solve a certain problem or achieve a definite goal empowering it to make rules. Such a statute may already exist in the property of agency, or it can be formed later.

The next step carries the decision to begin rulemaking. Although the statute may indicate the agency about the necessity of rulemaking on a definite subject, usually, the agency itself has to make a decision concerning the problem or goal that is urgent and deserves immediate attention in a rulemaking. A number of directives, lawsuits, and recommendations from experts, petitions, or judgment from the public have an influence on the decision of the agency. By means of the regulatory agenda, the agency announces the decision in advance up to 12 months.

The step of the preparing the proposed rule is the beginning of the next stage. The agency collects information in different ways: it visits multiple worksites, determines economic and technological feasibility, invites the representatives of all interested in the issue groups, organizes meetings with employers, unions, and other stakeholders, and tries to agree on the draft of the proposed rules. An Advanced Notice of Proposed Rulemaking aimed at involvement of formal public participation may be published by the agency. In the result of the joint approval, the proposed rule comes into existence.

The next step deals with regulatory analysis and review. The proposed rule has to go through a review:

“If the proposed rule is “economically significant,” the agency must predict the costs and benefits of the rule, and tell the Office of Information & Regulatory Affairs (OIRA) why it is not proposing cheaper solutions. If the proposed rule requires collecting information from the public, the agency must get OIRA’s permission” (Regulation Room, 2013, p. 4).

The stage of publication of the proposed rule includes several steps. The step regarding the notice of proposed rulemaking deals with the agency’s publishing of the proposed rule in the Federal Register. The Notice of Proposed Rulemaking

“usually: identifies the statute authorizing the rule; prints the text of the proposed rule; describes generally what problems or goals the agency is working on, and why it thinks the proposal is a good solution; identifies important data and other information used in developing the proposed rule; invites everyone to comment on all or part of it; and tells how to submit comments, as well as the date when they are due” (Regulation Room, 2013, p. 5).

The next step gives the opportunity for public comment. It is a chance for everybody to suggest a remark pertaining to any part of the rule. A further step with the opportunity for more process proposes a possibility for public hearings to be held on the proposed rule, which can be required by the authorizing statute. Such procedures help people better comprehend the proposed rule, leave reply comments, and provide a full discussion of the issue.

At this stage of rulemaking process, steps of fast rack to final or rulemaking without process are possible. It means that according to agency’s convictions about the absence of controversy in the proposed rule, it can be directed to final rulemaking. The Federal Register proposes the rule not as a proposed rule, but as a direct final rule. If there are no negative comments, that is a final publication of the rule. Interpretative rules, setting agency procedure, or contrary to the public interest rules become interim final rules and go right to final publication.

After the received comments, the step of post-comment internal review follows. All comments are reviewed by the agency thoroughly. In case of new data, arguments, and criticism, the proposed rule undergoes changes. If the regulatory review is passed the rule goes “to the Office of Information and Regulatory Affairs (OIRA) for a final review” (Regulation Room, 2013, p. 7).

The next step, the outcome, depends on the agency’s conclusion from the comments and OIRA’s final review. The rulemaking process can be stopped, at least for some period. The proposed rule can be changed and should go through steps of notice comments process in order to get public reaction. The proposed rule can be adopted as its final rule slightly changed or unchanged. Any outcome is published in the federal register.

Then, after the final rule publication, the steps of congressional and possible judicial reviews follow. Most of the final rules have to be sent to Congress for review. An injured by the rule person or corporation can request to a court to review the rule.

The last step in rulemaking process concerns interpretation, enforcement and reassessment. The agency’s job does not conclude with publishing a final rule. The compliance assistance materials and technical assistance manuals concerning the rule functioning should be performed by the agency.

Thus, an extensive amount of work is performed by an agency in terms of developing OSHA’s standards. It takes an agency a long period of time to get over all the steps on the rulemaking road. OSHA’s time frames for developing and issuing standards are too lengthy because the rulemaking process has to meet the increased number of procedural requirements.

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