MSHA Rule Making Process Terry L. Bentley Acting Deputy Administrator Coal Mine Safety and Health

The Statute  The Federal Mine Act -- Adopts Administrative Procedure Act Adopts Administrative Procedure Act Provides for public input Allows for emergency rulemaking Allows for emergency rulemaking Prohibits reducing protection Prohibits reducing protection Allows 60 days to challenge rules Allows 60 days to challenge rules

The Regulatory Process  Proposed Rule  Final Rule  Rule Making Process Details

The Regulatory Process -- The Proposed Rule  Establish a rulemaking committee  Draft proposed rule proposed rule preamble preamble economic analysis economic analysis  Obtain clearances and publish proposed rule  Hold hearings; request public comments

The Regulatory Process -- The Final Rule  Review all pre- and post hearing comments and hearing testimony  Draft final rule final rule preamble preamble economic analysis economic analysis  Obtain clearances and publish final rule

Rule Making Process Details  1. In promulgating a rule, MSHA issues a proposed rule, followed by hearings and public comment, and then a final rule. Time frames are normally 4-6 months to draft a proposed rule, 3- 4 months for clearance through MSHA and other agencies, 2-3 months for public hearings and comments, and repeat of drafting and clearance times for final rule.  1. In promulgating a rule, MSHA issues a proposed rule, followed by hearings and public comment, and then a final rule. Time frames are normally 4-6 months to draft a proposed rule, 3- 4 months for clearance through MSHA and other agencies, 2-3 months for public hearings and comments, and repeat of drafting and clearance times for final rule.

Rule Making Process Details  2. To speed up the process (which can easily take 2 years or longer), where no controversy is expected MSHA has issued a Direct Final Rule (DFR). That is, MSHA will publish a DFR and state, if there is a significant adverse comment, MSHA will go back and follow the normal procedures for rule making. Where there is no such comment, the DFR becomes effective as a final rule. MSHA has some success with this approach. By eliminating the proposed rule stage, total time to promulgation can be reduced by 50%.

Rule Making Process Details  3. Where there is a need to narrow issues or identify issues or potential problem areas, MSHA has issued Requests for Information (RFI). This is an extra step that allows us to frame a more appropriate proposed rule.  3. Where there is a need to narrow issues or identify issues or potential problem areas, MSHA has issued Requests for Information (RFI). This is an extra step that allows us to frame a more appropriate proposed rule.  4. For particularly sensitive issues, MSHA has sought public input through public information gathering meetings.

Rule Making Process Details  5. Where there is a grave danger and a necessity to act to protect miners, MSHA has authority to issue an emergency temporary standard, or ETS, which operates as both a final rule and a proposed rule. The ETS is effective immediately upon publication without the need for public comment. It is good for 9 months and MSHA can enforce the ETS for 9 months only. At that point, MSHA must have a final rule in place (the ETS is also a proposed rule). The ETS authority comes from the Federal Mine Act and is not applicable to other U.S. Government agencies.