Emergency standard rulemaking procedures

OSHA must start a rulemaking under section 6(b) and use the emergency standard as the proposed rule. The statute requires that "the Assistant Secretary must commence a proceeding under section 6(b) of the Act, and the standard as published must serve as a proposed rule," and any notice of proposed rulemaking must also notify the public of appropriate subsidiary proposals (1911.12(a)(1)).

• Practical steps: expect a Federal Register notice that treats the emergency text as the proposed rule, watch for subsidiary proposals included in that notice, and use the usual avenues (written comments, hearings if announced) to participate.

An emergency standard is considered issued when it is officially filed in the Office of the Federal Register. The filing time is used to determine whether petitions for judicial review are premature, timely, or late (1911.12(a)(2)).

• Practical tip: check the Federal Register filing date of the emergency standard to determine the starting point for any legal deadlines or challenges.

OSHA must give interested persons an opportunity to inspect and copy advisory committee recommendations within a reasonable time before any informal hearing begins, or before the close of the written comment period if an informal hearing is not initially noticed under 1910.11(b)(4). This is required when OSHA consults an advisory committee under section 7(b) (1911.12(b)).

• Check whether OSHA has noticed an informal hearing under 1910.11(b)(4) because that affects the timing for when committee recommendations must be available.

OSHA must promulgate a final standard following the rulemaking proceeding within six months after publication of the emergency standard, and it must expedite the proceeding to the extent practicable (1911.12(c)).

• "Expedited" means OSHA should shorten ordinary delays where reasonable—e.g., compressed public-comment windows, consolidated or earlier hearings, prompt publication of notices—while still complying with Administrative Procedure Act requirements and providing meaningful opportunity for public participation.

Subsidiary proposals are any appropriate additional or alternative regulatory options OSHA decides to include alongside the emergency standard when it publishes the notice of proposed rulemaking, and the notice must inform the public of those subsidiary proposals (1911.12(a)(1)).

• Practical effect: the public can comment not only on the emergency text but also on alternative language or related regulatory approaches that OSHA explicitly includes in the notice.

No — 1911.12(c) requires OSHA to promulgate the standard following the rulemaking within six months after publication of the emergency standard and to expedite the proceeding as practicable (1911.12(c)).

• If OSHA cannot meet the six-month deadline, the agency must still explain reasons and legal basis for any delay; stakeholders should monitor Federal Register notices and agency communications for updates.

The official filing date in the Office of the Federal Register establishes when the emergency standard is "issued," and that filing date is the reference point for determining whether a petition for judicial review is premature or timely (1911.12(a)(2)).

• Practical step: use the Federal Register filing stamp on the published emergency standard to calculate any statutory deadlines for filing challenges or seeking review in court.

Section 1911.12(b) ties the timing for providing advisory committee recommendations to whether an informal hearing was initially noticed under 1910.11(b)(4); if OSHA did not initially notice an informal hearing under that provision, committee recommendations must be made available before the close of the written comment period (1911.12(b) and 1910.11(b)(4)).

• In practice: monitor the initial notice to see whether an informal hearing has been announced under 1910.11(b)(4); that determines whether advisory committee reports must be available before hearings or before comment closure.

Yes — when OSHA consults an advisory committee, it must allow interested persons to inspect and copy the committee's recommendations within a reasonable time before any informal hearing or before the end of the written comment period if no hearing was initially noticed (1911.12(b)).

• Practical tip: during an expedited proceeding, request committee materials promptly after publication and track the announced hearing or comment deadlines so you can review and comment in time.

No — the emergency standard serves as the proposed rule for the required section 6(b) rulemaking, and OSHA must complete the rulemaking process (including notice, public comment, and any hearings) and then publish a final rule within six months; the emergency text is not automatically final without that process (1911.12(a)(1) and 1911.12(c)).

• In short: the emergency standard is the starting proposed text, but OSHA still must follow the rulemaking steps to make a permanent standard.

Stakeholders should treat the emergency standard as the proposed rule, review the Federal Register notice closely, and participate in the expedited rulemaking by submitting written comments or attending any informal hearings announced—because OSHA is required to commence section 6(b) proceedings and notify the public of subsidiary proposals (1911.12(a)(1)).

• Actions to take: 1) note the Federal Register filing date for legal timelines (1911.12(a)(2)); 2) request advisory committee recommendations if OSHA consulted a committee (1911.12(b)); and 3) prepare concise, timely comments given the shortened six-month cycle (1911.12(c)).

Yes — when OSHA publishes an emergency temporary standard under section 6(c), 1911.12 requires initiation of section 6(b) rulemaking with the emergency text serving as the proposed rule and a final rule to follow within six months (1911.12(a)(1) and 1911.12(c)). For an example, OSHA previously issued a Healthcare Emergency Temporary Standard (Healthcare ETS) for COVID-19 and later addressed portions of it and their enforcement in agency communications such as the memorandum about enforcement stays for certain COVID-19 recordkeeping requirements (COVID-19 recordkeeping enforcement stay).

• Practical note: emergency ETS issuance triggers both expedited rulemaking duties under 1911.12 and potential agency memoranda that explain enforcement priorities while formal rulemaking proceeds.

If OSHA affirms it will hold an informal hearing under 1910.11(b)(4), advisory committee recommendations must be made available to interested persons within a reasonable time before that hearing begins (1911.12(b) and 1910.11(b)(4)).

• Practical step: track the hearing date announced in the Federal Register and request committee materials promptly so you have sufficient time to prepare comments or testimony.

No — 1911.12(c) directs OSHA to expedite the proceeding to the extent practicable, but it does not eliminate the requirement to conduct the rulemaking under section 6(b), which includes notice, opportunity for written comments, and any hearings OSHA provides (1911.12(c) and 1911.12(a)(1)).

• In practice: expect shortened timelines but still plan to submit written comments and, if scheduled, participate in hearings to protect your interests.