Informal rulemaking procedures

They must be informal. The legislative history and 1911.15(a)(1) explain that Congress intended informal rulemaking procedures rather than formal ones, and proceedings under 1911.10 or 1911.11 are to be informal per 1911.15(a)(1).

• Informal rulemaking can rely on written comments alone unless an objection and hearing are requested. See 1911.15(a)(1).

Yes—OSHA should develop a record that supports conclusions, because judicial review looks for substantial evidence in the record when relevant. 1911.15(a)(2) explains that sections providing for hearings and judicial review suggest a congressional expectation that rulemakings will be based on a record to which a substantial evidence test may apply.

• This means when an informal hearing is held, OSHA should ensure the record contains the factual and evidentiary material needed to support its determinations under review. See 1911.15(a)(2).

OSHA provides an oral hearing of a legislative type, but the presiding officer may allow cross-examination on crucial issues. 1911.15(a)(3) states the hearing is legislative in style and the presiding officer has authority to permit cross-examination when fairness requires it.

• The goal is to allow effective oral presentations without rigid procedures that would unnecessarily delay rulemaking. See 1911.15(a)(3).

A hearing examiner appointed under 5 U.S.C. 3105 must serve as the presiding officer. 1911.15(b)(1) requires that the presiding officer be a hearing examiner appointed under 5 U.S.C. 3105.

• This ensures the presiding officer has appropriate appointment authority and qualifications. See 1911.15(b)(1).

OSHA must provide an opportunity for cross-examination on crucial issues. 1911.15(b)(2) requires the presiding officer to permit cross-examination when it is necessary to address crucial matters of the record.

• The presiding officer has discretion to allow cross-examination to ensure fairness while keeping procedures informal and expeditious. See 1911.15(a)(3) and 1911.15(b)(2).

Yes, hearings must be reported verbatim and a transcript must be made available to interested persons. 1911.15(b)(3) requires that the hearing be reported verbatim and that the transcript be available on terms the presiding officer sets.

• Practically, this means you can expect a complete transcript and the presiding officer will set reasonable terms for access. See 1911.15(b)(3).

Sections 1911.10 and 1911.11 set out the informal procedures that govern OSHA rulemaking, and 1911.15(a)(1) confirms proceedings under those sections are informal.

• Use these sections to understand timelines, submission of comments, and how hearings are handled in informal rulemaking. See 1911 and 1911.15(a)(1).

Yes—OSHA can make a decision on the basis of written comments alone unless an objection is made and a hearing is requested. 1911.15(a)(1) expressly permits deciding from written comments unless a hearing is sought following an objection.

• If a party objects to a proposed rule and requests a hearing, then an oral hearing opportunity applies. See 1911.15(a)(1).

When an informal hearing is held and judicial review occurs, determinations must be supported by substantial evidence in the record where that test is pertinent. 1911.15(a)(2) explains that the statute suggests an expectation the rulemaking will be based on a record that can be reviewed under the substantial evidence standard in appropriate cases.

• This does not convert the entire proceeding into a formal hearing, but it requires OSHA to build an adequate record when a hearing is held and judicial review is likely. See 1911.15(a)(2).

The presiding officer decides whether to permit cross-examination when fairness requires it and where cross-examination concerns crucial issues. 1911.15(a)(3) gives the presiding officer the power to allow cross-examination in appropriate circumstances.

• The intent is to balance fairness and the need for expedient, informal proceedings. See 1911.15(a)(3).

OSHA's procedures add specific protections—appointment of a hearing examiner, opportunity for cross-examination on crucial issues, and verbatim reporting—beyond the bare requirements of 5 U.S.C. 553. 1911.15(b) lists these additional requirements.

• The specifics are spelled out in 1911.15(b)(1), 1911.15(b)(2), and 1911.15(b)(3).

Yes—OSHA can set terms for access, but the hearing must be reported verbatim and a transcript must be made available to interested persons. 1911.15(b)(3) requires a verbatim report and permits the presiding officer to determine the terms of availability.

• Terms could include fees for copying or timeframes for requesting the transcript; however, the transcript must be obtainable under whatever terms the presiding officer sets. See 1911.15(b)(3).

Yes—OSHA may use advisory committees as part of informal rulemaking. 1911.15(a)(1) notes the use of advisory committees as one reason the proceedings are considered informal.

• Advisory committees can help gather technical advice and stakeholder input within an informal rulemaking framework. See 1911.15(a)(1).

It means the hearings are designed for making policy decisions and obtaining public input rather than resolving private rights through strict trial-like procedures. 1911.15(a)(3) characterizes oral hearings as legislative in type while allowing flexibility like cross-examination where fairness requires.

• Expect less formal rules of evidence and procedure than in a formal adjudicatory hearing, but with safeguards for fairness. See 1911.15(a)(3).

No—informal rulemaking does not prevent judicial review; courts can review OSHA determinations and apply the substantial evidence standard where relevant. 1911.15(a)(2) explains that the statutory scheme anticipates judicial review based on the record produced in informal proceedings.

• OSHA should prepare a complete record during rulemaking because a court may examine whether the Secretary's determinations are supported by substantial evidence. See 1911.15(a)(2).

An objection to a proposed rule combined with a request for a hearing triggers the right to an oral hearing. 1911.15(a)(1) states that a decision may be based on written comments unless an objection is made and a hearing is requested, in which case an oral hearing opportunity applies.

• If no one objects or requests a hearing, OSHA may proceed on written comments alone. See 1911.15(a)(1).

The presiding officer should allow effective oral presentation and necessary protections like cross-examination while avoiding rigid procedures that unduly delay the process. 1911.15(a)(3) and 1911.15(b) instruct that hearings be informal and legislative, with specific additional protections but not formal adjudicatory rules.

• The presiding officer has discretion to structure the hearing to be fair, efficient, and focused on the record needed for decisionmaking. See 1911.15(a)(3).

Yes—the presiding hearing examiner must be appointed under 5 U.S.C. 3105. 1911.15(b)(1) specifies this appointment requirement.

• This ensures the examiner is properly appointed and has authority to manage the hearing. See 1911.15(b)(1).

Yes—the rules limit mandatory cross-examination to crucial issues, and the presiding officer may permit cross-examination on those matters. 1911.15(a)(3) and 1911.15(b)(2) make clear that cross-examination is to be provided where fairness requires and where issues are crucial.

• Non-crucial or peripheral matters may be handled through written submissions to keep the hearing efficient. See 1911.15(a)(3).

No—strict trial procedures and rigid rules of evidence are not required; hearings are informal and designed to avoid undue protraction. 1911.15(a)(3) emphasizes the absence of rigid procedures that could unduly impede the rulemaking process.

• That said, fairness measures like allowing cross-examination on crucial issues and creating a verbatim transcript still apply. See 1911.15(a)(3) and 1911.15(b).

To preserve a clear and accurate record for decisionmaking and potential judicial review, OSHA requires that hearings be reported verbatim with transcripts available. 1911.15(b)(3) mandates verbatim reporting and transcript availability.

• A verbatim transcript supports the substantial evidence review that courts may apply if a hearing occurred. See 1911.15(a)(2).

OSHA should retain the written comments and supporting materials that form the rulemaking record because decisions may be based on those documents and courts may review the record. 1911.15(a)(1) allows decisions on written comments, and 1911.15(a)(2) indicates the importance of a record for judicial review.

• Keep comment files, technical data, and internal analyses to support any determinations made without an oral hearing. See 1911.15(a)(1).

Yes—because proceedings are informal, written statements and written comments can be used and may form the basis for decisions unless an objection and hearing are requested. 1911.15(a)(1) permits deciding on written comments alone.

• Written statements are often encouraged to help build the record and streamline the rulemaking process. See 1911.15(a)(1).