OSHA Standards Development Process

Overview of OSHA Standards

OSHA standards are legally enforceable regulations designed to protect workers from hazards. They specify the methods employers must use to protect their employees from hazards and the procedures that must be followed to maintain compliance. For construction industry supervisors, understanding how these standards are developed provides insight into their purpose, application, and occasional limitations.

OSHA standards for construction are found in Title 29 of the Code of Federal Regulations (CFR), Part 1926. These standards are organized into subparts addressing specific categories of hazards or construction activities. Unlike the general industry standards in 29 CFR 1910, construction standards are tailored to the unique, often temporary and changing nature of construction work environments.

It's important to recognize that OSHA standards represent minimum requirements. Many construction companies implement safety measures that exceed these minimum standards to further protect workers, improve productivity, and reduce costs associated with injuries and illnesses.

Types of OSHA Standards

Before examining the development process, construction supervisors should understand the different types of standards OSHA creates:

Specification Standards

Specification standards provide detailed, explicit requirements that must be followed exactly as written. These standards leave little room for interpretation or alternative approaches. Examples in construction include:

• Specific dimensions for guardrail systems (top rail height of 42 inches ± 3 inches)
• Exact trigger heights for fall protection (6 feet in construction)
• Precise slope requirements for different soil types in excavations

These standards provide clarity but may sometimes lack flexibility to accommodate unique worksite conditions.

Performance Standards

Performance standards define the safety or health outcome that must be achieved but allow employers flexibility in determining how to reach that outcome. Examples include:

• Requirements that employers provide "adequate" illumination for construction activities
• Mandates that employers establish an "effective" hearing conservation program when noise exceeds certain levels
• Requirements for "appropriate" fire extinguishers based on the types of potential fires

Performance standards provide flexibility but sometimes create uncertainty about what specific measures will satisfy OSHA requirements.

Horizontal vs. Vertical Standards

OSHA standards are also categorized by their applicability across industries:

Horizontal standards apply across multiple industries. Examples include:

• Hazard Communication (1910.1200/1926.59)
• Respiratory Protection (1910.134/1926.103)
• Personal Protective Equipment requirements (Subpart E/1926 Subpart E)

Vertical standards apply to specific industries or hazards. Most construction standards in 29 CFR 1926 are vertical standards, addressing hazards unique to construction work, such as:

• Scaffolding requirements (1926 Subpart L)
• Steel erection provisions (1926 Subpart R)
• Concrete and masonry construction (1926 Subpart Q)

Construction supervisors must comply with both applicable horizontal and vertical standards.

Interim vs. Permanent Standards

OSHA has authority to issue two types of standards based on urgency:

Emergency Temporary Standards (ETS) can be issued when workers are in grave danger from new hazards or exposures. These standards:

• Take effect immediately upon publication
• Are valid for six months
• Must be replaced by a permanent standard within that timeframe
• Do not require the full public comment process before implementation

Permanent Standards follow the complete rulemaking process, including public comment periods and hearings. These form the majority of OSHA's regulatory framework.

The Standard Development Process

OSHA's standard development process follows the requirements of several laws, including the OSH Act, the Administrative Procedure Act, the Regulatory Flexibility Act, and other federal requirements governing regulatory actions. Understanding this process helps construction supervisors appreciate why standards take time to develop and may contain compromises among different stakeholders' interests.

1. Determination of Need

Standards development begins when OSHA identifies a significant risk to worker safety or health that is not adequately addressed by existing standards. This identification may come from:

• Petitions: Interested parties (including industry groups, labor organizations, or safety professionals) can petition OSHA to create a new standard or modify an existing one.
• Congressional Mandate: Congress may direct OSHA to develop specific standards, as it did with the Hazardous Waste Operations and Emergency Response (HAZWOPER) standard.
• National Consensus Standards: OSHA may adopt or modify standards already developed by consensus standards organizations like the American National Standards Institute (ANSI) or the National Fire Protection Association (NFPA).
• Internal Research: OSHA's own data analysis and research may identify hazards requiring standardization.
• NIOSH Recommendations: The National Institute for Occupational Safety and Health (NIOSH) conducts research and may recommend new or revised standards to address identified hazards.
• Fatal Accidents or New Hazards: Patterns of fatalities or the emergence of new workplace hazards may prompt standard development.

For construction-specific standards, industry trends, fatality patterns, and feedback from stakeholders like the Advisory Committee on Construction Safety and Health (ACCSH) play significant roles in determining the need for new regulations.

2. Initial Data Collection and Analysis

Once OSHA determines that a standard may be needed, it begins extensive data collection and analysis:

• Scientific Research: Review of existing scientific literature on the hazard and effective controls.
• Industry Practices: Examination of current industry practices and existing consensus standards.
• Technological Feasibility: Assessment of available technology to address the hazard.
• Economic Impact: Analysis of the economic impact of potential regulatory approaches.
• Stakeholder Input: Informal consultations with industry representatives, labor unions, safety professionals, and other stakeholders.

Construction supervisors may be involved in this stage through industry associations, stakeholder meetings, or site visits by OSHA representatives gathering information on current practices.

3. SBREFA Process

For standards that may significantly impact a substantial number of small entities, OSHA must comply with the Small Business Regulatory Enforcement Fairness Act (SBREFA). This requires:

• Small Business Review Panels: OSHA convenes panels with representatives from small businesses, the Small Business Administration, and the Office of Management and Budget.
• Review of Regulatory Approaches: These panels review drafts of the proposed standard and supporting analyses.
• Feedback on Alternatives: Small business representatives provide feedback on regulatory alternatives, potential impacts, and compliance challenges.
• SBREFA Report: The panel produces a report with recommendations that OSHA must consider.

Many construction companies qualify as small businesses, making the SBREFA process particularly relevant to the construction industry. This process often results in modifications to proposed standards to reduce burden on smaller contractors.

4. Proposed Rule

After completing preliminary analysis and any required SBREFA process, OSHA publishes a Notice of Proposed Rulemaking (NPRM) in the Federal Register. This notice includes:

• The Proposed Regulatory Text: The specific language of the proposed standard.
• Explanation of Need: OSHA's justification for the standard.
• Technical and Economic Analyses: Data supporting the standard's feasibility and economic impact.
• Request for Comments: Specific issues on which OSHA seeks public input.
• Hearing Notice: If public hearings will be held, information on dates, locations, and participation procedures.

Construction supervisors should monitor proposed rules through industry associations, OSHA's website, or the Federal Register to stay informed about potential new requirements that may affect their operations.

5. Public Comment Period

Following publication of the proposed rule, OSHA provides a public comment period, typically 60-90 days (though sometimes longer for complex standards). During this period:

• Any interested party may submit written comments on any aspect of the proposed rule.
• Comments may address technical feasibility, economic impact, effectiveness, alternative approaches, or any other relevant concerns.
• OSHA may extend the comment period if requested or if the standard is particularly complex.

Construction companies, industry associations, and individual supervisors can participate in this process by submitting comments based on their expertise and experience. Well-reasoned, data-driven comments that suggest specific improvements to the proposed standard can influence the final rule.

6. Public Hearings

For most significant standards, OSHA holds public hearings where interested parties can present testimony and evidence. These hearings:

• Allow for in-depth discussion of the proposed standard.
• Permit OSHA officials to question participants about their positions.
• Create an official record of stakeholder input.
• Usually permit cross-examination of witnesses by other participants.
• May last several weeks for complex standards.

Construction industry representatives often testify at these hearings, providing practical insights about how proposed requirements would affect real-world construction operations. This testimony becomes part of the official record OSHA must consider.

7. Post-Hearing Comment Period

After public hearings, OSHA typically allows additional time for:

• Submission of additional evidence and data.
• Responses to questions raised during the hearings.
• Comments on issues identified during the hearing process.

This period provides a final opportunity for stakeholders to influence the standard before OSHA begins developing the final rule.

8. Analysis of the Record and Development of the Final Rule

OSHA staff review all comments, testimony, and evidence submitted during the rulemaking process. Based on this analysis, they:

• Revise the proposed standard as appropriate.
• Prepare responses to significant comments.
• Update economic and technological feasibility analyses.
• Develop a final regulatory text.
• Prepare a detailed preamble explaining OSHA's rationale for the final standard and any changes from the proposal.

This analysis often takes months or even years for complex standards, as OSHA must address all significant issues raised during the rulemaking process.

9. OMB Review

Before publication, the final standard must be reviewed by the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA). This review:

• Ensures consistency with administration policies.
• Verifies compliance with executive orders on regulatory development.
• Confirms that the standard's benefits justify its costs.
• May result in further revisions to the standard.

This review typically takes 90 days but may be extended for complex regulations.

10. Publication of the Final Rule

After completing all required analyses and reviews, OSHA publishes the final standard in the Federal Register. The publication includes:

• The final regulatory text.
• A comprehensive preamble explaining OSHA's rationale.
• Responses to significant public comments.
• The effective date of the standard (typically 60 days after publication).
• Compliance dates for specific provisions (which may be phased in over time).

Construction supervisors should carefully review final standards to understand new requirements, implementation timeframes, and any phased compliance provisions.

11. Potential Legal Challenges

After publication, interested parties have 60 days to file legal challenges to the standard in federal appeals courts. These challenges:

• May allege that OSHA exceeded its statutory authority.
• May claim the standard is not supported by substantial evidence.
• May assert that OSHA failed to follow required procedures.
• Can result in the standard being upheld, modified, or vacated.

The courts typically defer to OSHA's technical expertise but will intervene if the agency failed to follow required procedures or if the standard lacks substantial evidence support.

12. Implementation and Outreach

Once a standard is finalized, OSHA develops resources to help employers comply:

• Compliance directives for OSHA inspectors.
• Guidance documents for employers.
• Training materials and fact sheets.
• Small entity compliance guides.
• Outreach sessions and webinars.

Construction supervisors should take advantage of these resources, which often provide practical compliance approaches and clarification of potentially ambiguous provisions.

Special Considerations for Construction Standards

Construction standards development includes some unique elements that construction supervisors should understand:

Advisory Committee on Construction Safety and Health (ACCSH)

OSHA is required by law to consult with ACCSH before proposing or finalizing any construction standard. This committee:

• Consists of 15 members representing employers, employees, state agencies, and the public.
• Provides recommendations on construction standards and policies.
• Reviews proposed construction standards before publication.
• Identifies emerging issues and hazards in the construction industry.

ACCSH meetings are public, and construction supervisors can attend or review meeting minutes to gain insight into developing standards and OSHA's construction policy direction.

Negotiated Rulemaking

For particularly complex or controversial construction standards, OSHA sometimes uses negotiated rulemaking, where representatives of affected interests work together to develop a proposed standard. Examples include the Cranes and Derricks standard and the Steel Erection standard. This process:

• Brings stakeholders together before a formal proposal is developed.
• Seeks consensus on technical requirements and implementation approaches.
• Often results in standards with greater industry acceptance.
• May produce more practical, implementable requirements.

Construction supervisors whose operations would be affected by standards developed through negotiated rulemaking should consider participating through their industry associations.

Incorporation by Reference

Many construction standards incorporate consensus standards by reference, making those external documents part of the legal requirement. Common examples include:

• ANSI standards for personal protective equipment.
• NFPA standards for fire protection.
• ASME standards for cranes and elevators.
• IEEE standards for electrical safety.

This approach allows OSHA to leverage industry expertise but requires construction supervisors to obtain and follow these referenced standards, which are not freely available like the CFR.

Current Trends in Standards Development

Construction supervisors should be aware of current trends affecting OSHA standards development:

Greater Reliance on Performance Standards

OSHA has increasingly moved toward performance standards that:

• Specify the safety outcome rather than exact methods.
• Provide flexibility for employers to develop appropriate solutions.
• Allow for technological innovation.
• May reduce compliance costs.

This trend requires construction supervisors to exercise more professional judgment in determining compliance approaches.

Emphasis on Technical and Economic Feasibility

Recent court decisions have emphasized OSHA's obligation to demonstrate that standards are both technologically and economically feasible for all affected industries. This has resulted in:

• More detailed feasibility analyses.
• Industry-specific provisions within broader standards.
• Extended compliance deadlines for particularly challenging requirements.
• More extensive SBREFA consultations.

Construction supervisors should participate in feasibility discussions for proposed standards to ensure OSHA understands real-world implementation challenges.

Longer Development Timeframes

The increasing complexity of safety issues, combined with procedural requirements and resource constraints, has extended the time required to develop standards. Major standards often take 5-10 years from initial consideration to final publication. This means:

• Industry practices may evolve significantly during the development process.
• New technologies may emerge that affect the standard's approach.
• Construction supervisors need to monitor long-term regulatory developments.

Use of the General Duty Clause for Emerging Hazards

When hazards emerge before standards can be developed, OSHA often relies on the General Duty Clause (Section 5(a)(1) of the OSH Act) for enforcement. Recent examples include:

• Heat illness hazards in outdoor construction.
• Workplace violence in certain settings.
• Infectious disease exposures.

Construction supervisors should monitor OSHA enforcement trends, as General Duty Clause citations can signal areas where formal standards may eventually be developed.

Participating in the Standards Development Process

Construction supervisors can influence standards development in several ways:

Individual Participation

Individual supervisors can:

• Submit comments on proposed standards.
• Testify at public hearings.
• Respond to OSHA requests for information.
• Participate in OSHA stakeholder meetings.
• Volunteer for SBREFA panels if representing a small business.

Industry Association Involvement

Most construction supervisors find it more effective to participate through industry associations that:

• Monitor regulatory developments.
• Develop collective industry positions.
• Submit detailed technical comments.
• Participate in negotiated rulemaking.
• Sometimes challenge problematic standards in court.

Major construction associations active in standards development include the Associated General Contractors of America (AGC), Associated Builders and Contractors (ABC), the National Association of Home Builders (NAHB), and specialty contractor associations.

State Plan Input

In states with state OSHA plans, construction supervisors can also:

• Participate in state-specific standard development processes.
• Provide input on state standards that may exceed federal requirements.
• Serve on state advisory committees.
• Attend state rulemaking hearings, which may be more accessible than federal proceedings.

Voluntary Consensus Standards Development

Many construction supervisors also participate in developing voluntary consensus standards through organizations like ANSI, NFPA, and ASTM. This involvement:

• Helps shape standards that OSHA may later adopt.
• Provides technical expertise to improve safety requirements.
• Gives early insight into emerging safety approaches.
• May prevent unnecessarily burdensome requirements.

Implementing New Standards

When new construction standards are published, supervisors face several implementation challenges:

Compliance Timeline Management

Most major standards include phased compliance dates:

• The standard's effective date (when it becomes legally enforceable)
• Various compliance dates for specific provisions
• Sometimes different dates for different size employers
• Extended deadlines for engineering controls or equipment replacement

Construction supervisors should develop comprehensive implementation timelines that track all applicable deadlines and plan resources accordingly.

Gap Analysis

When a new standard is published, supervisors should:

• Compare current practices to new requirements
• Identify specific compliance gaps
• Prioritize changes based on compliance deadlines and safety impact
• Develop action plans for achieving compliance

This systematic approach prevents overlooking important requirements and allows for efficient resource allocation.

Documentation Updates

New standards typically require updating:

• Written safety programs
• Training materials
• Inspection procedures
• Recordkeeping systems
• Equipment specifications
• Subcontractor requirements

Construction supervisors should ensure these documents reflect new requirements before compliance deadlines.

Training and Communication

For successful implementation, supervisors must:

• Train affected employees on new requirements
• Communicate changes to subcontractors and suppliers
• Brief project owners on potential schedule or cost impacts
• Update safety orientation for new workers
• Document all training on new requirements

Compliance Resources

Several resources can assist with implementation:

• OSHA compliance assistance publications
• Industry association guidance
• Small entity compliance guides
• OSHA consultation services
• Third-party safety consultants
• Equipment vendor support

Supervisors should take advantage of these resources rather than attempting to interpret complex standards in isolation.

Variance Procedures

In some situations, construction supervisors may need to request variances from OSHA standards:

Temporary Variances

Temporary variances may be granted when:

• An employer cannot comply with a new standard by the effective date
• The employer is taking all available steps toward compliance
• Workers are protected by alternative measures

These variances:

• Require a formal application to OSHA
• Have specific time limitations
• May include conditions for worker protection
• Must demonstrate a good-faith effort to comply

Permanent Variances

Permanent variances may be granted when:

• An employer's alternative approach provides protection equal to or better than the standard requires
• The variance application includes technical evidence of equivalent protection
• Affected employees are notified and given an opportunity to participate in the proceedings

These are rarely granted in construction but may be appropriate for unique situations or innovative protection methods.

Variance Applications

Variance applications must include:

• The specific standard from which a variance is requested
• A detailed description of the alternative means of protection
• Evidence that workers will be protected
• Certification that workers have been informed
• Comprehensive documentation of the situation

Construction supervisors should view variances as a last resort, as the application process is lengthy and approval is not guaranteed.

Petitions for Modification or Revocation

When existing standards prove problematic, construction supervisors can petition OSHA to modify or revoke them. These petitions should:

• Identify specific provisions that are problematic
• Provide evidence of infeasibility or ineffectiveness
• Suggest alternative approaches
• Include relevant technical and economic data

While OSHA is not required to act on such petitions, well-documented and technically sound petitions can influence future standard revisions.

Comparing U.S. and International Standards

Construction supervisors working for multinational companies or on international projects should understand how OSHA standards compare with international approaches:

International Organization for Standardization (ISO)

ISO develops voluntary consensus standards used globally. While not directly enforceable, these standards:

• Often influence national regulations
• May be contractually required on international projects
• Frequently address management systems rather than specific hazards
• Are developed through international consensus

European Union Standards

EU construction safety standards are established through directives that:

• Set minimum requirements for all member states
• Allow individual countries to implement more stringent requirements
• Often take a more performance-based approach than OSHA
• May address some hazards not covered by OSHA standards

Canadian Standards

Canadian construction safety regulations are primarily provincial rather than federal, creating variation similar to U.S. state plans. These standards:

• Often align closely with OSHA requirements
• May include different approaches to common hazards
• Frequently incorporate CSA (Canadian Standards Association) standards
• Can create compliance challenges for cross-border contractors

Understanding these international approaches can help construction supervisors develop more comprehensive safety programs that satisfy multiple jurisdictional requirements.

Conclusion

The OSHA standards development process represents a complex balance of regulatory procedure, technical considerations, and stakeholder input. For construction supervisors, understanding this process provides valuable context for interpreting and implementing standards. By actively participating in standards development, staying informed about regulatory trends, and implementing systematic compliance approaches, supervisors can more effectively navigate the evolving regulatory landscape while protecting worker safety and health.