MSHA Rule Making Process

1
MSHA Rule Making Process

• Terry L. Bentley
• Acting Deputy Administrator
• Coal Mine Safety and Health

2
The Statute

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

3
The Regulatory Process

• Proposed Rule
• Final Rule
• Rule Making Process Details

4
The Regulatory Process -- The Proposed Rule

• Establish a rulemaking committee
• Draft
• proposed rule
• preamble
• economic analysis
• Obtain clearances and publish proposed rule
• Hold hearings request public comments

5
The Regulatory Process --The Final Rule

• Review all pre- and post hearing comments and
  hearing testimony
• Draft
• final rule
• preamble
• economic analysis
• Obtain clearances and publish final rule

6
Rule Making ProcessDetails

• 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. 

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Rule Making ProcessDetails

• 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.

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Rule Making ProcessDetails

• 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.

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Rule Making ProcessDetails

• 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.