On Safety: OSHA’s current regulatory agenda

The Department of Labor recently issued its regulatory agenda for Fall 2021. ITs. The agenda is part of the Unified Agenda of Federal Regulatory and Deregulatory Actions – a semiannual compilation of information about regulations under development by federal agencies.

The unified agenda is intended to let the “regulated community” know what the different agencies are working on, or planning to work on, over the next six months. It’s an interesting document. Some administrations put everything they can think of on it – whether they’re actually working on it or not. Others keep it simple by listing only what they’re actually intending to work on. My preference has always been the latter.

The agenda – issued by the Office of Information and Regulatory Affairs – provides the status of and projected dates for all potential regulations listed in three stages: pre-rule, proposed rule and final rule. Listings marked “long term” aren’t expected to be worked on for at least six months.

Normally, in the pre-rule stage, OSHA and other agencies announce a rulemaking in the Federal Register and then ask a series of questions via either an advance notice of proposed rulemaking or a Request for Information, also published in the Federal Register.

The next step in rulemaking is the proposed rule stage. This is perhaps the longest, as an agency may convene a small business panel to review a proposed standard before publication in the Federal Register. An agency then writes and issues the proposed rule, hosts public meetings, and solicits comments and input on the proposal.

The final rule stage involves sorting through all comments received, writing the final rule, and posting or issuing the final rule. After publication of the final rule, OSHA often prepares a Q&A document, a compliance directive and small business guidance, as well as conducts training on the new standard.

Although the unified agenda lists only three steps, there are, in fact, numerous steps in the rulemaking process – with many in-between steps. The nine basic steps:

1. Initiation of rulemaking
2. Publication of an ANPRM or RFI, in which questions are asked by the agency
3. Public comment period
4. Publication of a formal notice of proposed rulemaking
5. Publication of a proposed standard or regulation
6. Public comment period
7. Public hearing
8. Post-hearing comment period
9. Posting of the final rule

I’ve always believed the key step for stakeholder input is the ANPRM or the posting of an RFI. At this stage in the process, OSHA has recognized that a hazard exists, understands that rulemaking may be necessary and is asking the regulated community a series of questions. Additionally, the agency is seeking answers from stakeholders on whether the issue warrants a standard, what employers are doing to address the issue, what controls they’re using, what the costs of the controls are, if other issues exist that OSHA should be aware of and so forth.

For example, a recent ANPRM on heat injury and illness prevention includes more than 100 questions to help guide stakeholder comments. This is a key time for comment and input to OSHA because the agency hasn’t started drafting a standard and isn’t locked into any position, other than knowing that the current data supports a new regulation.

The latest DOL agenda lists seven OSHA actions in the final rule stage, meaning they should be published at some point in 2022:

• Four whistleblower regulations.
• An update to the standard on walking-working surfaces (1910.22), Subpart D. The rulemaking involves an update to the 2016 standard for which the agency plans to correct a formatting error in Table D-2, as well as revise the language of the requirements for stair rail systems to make them clearer and reflect OSHA's original intent.
• The emergency temporary standard on COVID-19 for health care
• The ETS on COVID-19 vaccination, testing and masking, the fate of which will ultimately be decided by the Supreme Court.