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Rulemaking Frequently Asked Questions

If a new rule isn't in the CFR, why isn't it? How can I get a copy?

Chapter 1 of Title 30 of the Code of Federal Regulations (30 CFR) is updated each July. All new rules that become effective between July 1 and the following June 30 are put in the next version of 30 CFR. New rules are often highlighted on the MSHA homepage where you can usually get a copy of the preamble and rule. You can also visit our Federal Register documents page to find a copy of the rule. If you still need help and/or would like a copy of the rule sent to you by e-mail or regular mail, feel free to contact MSHA's Office of Standards, Regulations, and Variances (OSRV).

Who should I contact for questions about new rules?

Questions related to the enforcement of a rule should be directed to the Coal or Metal/Nonmetal Office, as appropriate. For questions about the history of a rulemaking, or a rule's background or intent, please contact MSHA’s Office of Standards, Regulations, and Variances.

MSHA is currently working on a number of rules. What are they?

A list of our current regulatory projects is published in the Federal Register around April/May and October/November each year, as part of the Federal government's Semi-Annual Regulatory Agenda. For rules in progress, we can tell the public only what is published in the Agenda. You may obtain a copy of the Semi-Annual Regulatory Agenda on MSHA’s website or at Regulations.gov. The Agenda describes our workload for the next six months to a year and is divided into four sections based on the stage of the rulemaking: Pre-Rule, Proposed Rule, Final Rule, and Completed Actions. 

What's the difference between an Advance Notice of Proposed Rulemaking (ANPRM), a Notice of Proposed Rulemaking (NPRM or proposal), a Final Rule, a Direct Final Rule, and an Emergency Temporary Standard?

ANPRM: We use an advance notice of proposed rulemaking when we need more information or data to determine whether a rule is needed, what regulation to develop, or when we want ideas or alternative suggestions for dealing with a specific hazard.

NPRM or Proposed Rule: A proposed rule lays out how we plan to address a specific problem and requests comment on our plan. It consists of proposed regulatory text and a preamble (see Question 5 below). After a proposed rule is published in the Federal Register and after public hearings, if the Agency holds them, we can proceed to a final rule or, if the comments warrant, we can develop a different rule and re-propose it.

Final Rule: A final rule is the standard or regulation we enforce. We publish the regulatory text and preamble in the Federal Register. Each final rule is codified in Title 30 of the Code of Federal Regulations (30 CFR). Only the final rule itself appears in the 30 CFR, not the preamble.

Direct Final Rule: A direct final rule is a final rule that does not go through proposed rulemaking first. We use direct final rulemaking when we expect that the rule will generate no significant adverse comments. Typically, when we publish a direct final rule in the Federal Register, we publish a substantively-identical companion proposed rule under MSHA's usual procedures for notice and comment rulemaking. In the event we do receive significant adverse comment on the direct final rule, we will withdraw the direct final rule and continue rulemaking, making use of the proposed rule and the adverse comment.

Emergency Temporary Standard: We issue an emergency temporary standard when the danger to miners is so grave that immediate action is necessary. This standard can be enforced immediately while concurrently serving as a proposed rule.

What is a preamble?

A preamble is a discussion that provides detailed information about the background, purpose, justification, and technological feasibility of a proposed or final rule. It precedes the regulatory text when the rule is published in the Federal Register. The preamble for a proposed rule provides information about the reason for the rule and the alternatives the Agency is considering. It asks the public to provide information, data, opinions, and concerns to assist the Agency in making decisions about the rule. The preamble for a final rule contains a discussion of the comments that the Agency received concerning the proposed rule and describes how the Agency addresses these comments in the final rule.

What's the difference between a standard, a regulation, and a rule?

There is a fine legal distinction between a standard and a regulation. A standard is promulgated under § 101 of the Mine Safety and Health Act of 1977 (Mine Act) (30 U.S.C. 811) and includes MSHA health, safety, and training standards. A regulation is promulgated under § 508 of the Mine Act (30 U.S.C. 957) and includes MSHA approval requirements, petition for modification procedures, and civil penalty procedures. The "authority" under which a standard or regulation is promulgated is published at the end of the Table of Contents for each part (and for some subparts) of the 30 CFR. MSHA can write an "order" to close a mine for a violation of § 104 (d) or (e) of the Mine Act for standards, but not for regulations. MSHA can issue a "citation" for violation of either an MSHA standard or an MSHA regulation.

A rule, as defined under the Administrative Procedure Act, encompasses the development of a standard or regulation. A standard or regulation can be loosely referred to as a rule.

Why does it take so long to get a rule published?

We, like all other government agencies, must comply with the Administrative Procedures Act (APA) in promulgating even the simplest rule. The APA prescribes minimum procedural conditions that all agencies are expected to follow to ensure public participation in the formulation and revision of government regulations. The APA and the Mine Act require "Notice and Comment" rulemaking. We must publish an NPRM in the Federal Register and allow the public to comment on it. The public can request that we hold public hearings. In addition, prior to publishing a proposed or final safety standard, other laws and executive orders require us to determine the impact of the rule on the economy; on state, local, and tribal governments; on small businesses; on the health and safety of children; and on paperwork burden. If the agency is working on a proposed and final health standard, we must also assess the effect of the rule on the environment. These requirements, as well as Department of Labor (DOL) and Office of Management and Budget (OMB) clearance requirements, add to the time needed to complete a rule.

It can easily take over a year, and often considerably longer, to promulgate a rule. The following 22 steps summarize the major tasks in promulgating a rule. There are variations based on the type of rulemaking, e.g., Advance Notice of Proposed Rulemaking, Direct Final Rule, etc.

  1. Initiate regulatory action
  2. Obtain an Office of Management and Budget (OMB) determination of significance of the rule
  3. Draft proposed rule, preamble, preliminary regulatory economic analysis, and information collection package.
  4. Clear regulatory action through MSHA
  5. Clear regulatory action through DOL
  6. Obtain Secretary of Labor approval
  7. Obtain OMB clearance
  8. Publish proposed rule in Federal Register
  9. Transmit required information to the Small Business Administration Chief Counsel for Advocacy
  10. Notify interested parties of publication via email
  11. Receive public comment
  12. Hold hearings (if needed)
  13. Revise proposed rule and associated analyses to prepare final rule, preamble, and final regulatory economic analysis and information collection package
  14. Clear regulatory action through MSHA
  15. Clear regulatory action through DOL
  16. Obtain Secretary of Labor approval
  17. Obtain OMB clearance
  18. Obtain DOL and OMB clearance on information collection package and obtain paperwork burden control number
  19. Publish final rule in Federal Register and place the final regulatory economic analysis on the agency’s website.
  20. Transmit required information to the Small Business Administration Chief Counsel for Advocacy
  21. Transmit final rule to both Houses of Congress and the General Accounting Office
  22. Notify interested parties of publication of the final rule via email

Finally, note that even after the final rule is published, it may be subject to legal challenge in the courts by interested parties.
 

What is a Regulatory Economic Analysis (REA)?

A REA is a document containing an analysis of the economic impacts of an MSHA rule on affected entities. Economic impacts include both (1) the compliance costs (and, as appropriate, cost savings) for the segments of the mining industry covered by the rule, as well as other related industries (e.g., manufacturers of mining equipment) affected by the rule, and (2) the related miner health and safety benefits. The analysis of regulatory impacts provided in an MSHA REA, as required by various executive orders and statutory requirements, including Executive Order 12866, the Mine Act, the Regulatory Flexibility Act, and the Paperwork Reduction Act, must address impacts and paperwork burden on the mining industry, on other industries, and on small mining businesses affected by the rulemaking.

What is the difference between a Preliminary Regulatory Economic Analysis (PREA) and a Final Regulatory Economic Analysis (REA)?

A PREA accompanies a proposed rule, while a REA accompanies a final rule. (Note that, for convenience, we usually omit the "Final" in "Final Regulatory Economic Analysis." Hence, the acronym is "REA" rather than "FREA.") 

What is contained in a PREA/REA?

A PREA/REA contains the following:

  • an overview of those segments of the mining industry affected by the MSHA rulemaking;
  • a detailed discussion of the estimated health and/or safety benefits of the rule;
  • a detailed account of the costs industry must incur to comply with the rule;
  • a determination of the economic feasibility of the rule, as required under the Mine Act;
  • a determination of whether the rule would have a significant impact on a substantial number of small entities (e.g., mines or other affected businesses), as required under the 1980 Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA);
  • an estimate of the paperwork burden hours and costs that the rule would impose on the affected sector, as required under the Paperwork Reduction Act of 1995; and
  • a determination of "other" impacts of the rule, as required by various other statutes and executive orders. 
Is the PREA/REA published in the Federal Register?

The PREA/REA is not published in the Federal Register. However, it is posted on MSHA's website at the same time that the rule is published in the Federal Register, so that anyone can access it. In addition, interested parties may view a hardcopy of the PREA/REA in the reading room next to MSHA's docket room or obtain a hardcopy of the PREA/REA from MSHA's Office of Standards, Regulations, and Variances (OSRV). Note that the published preamble to a proposed or final rule contains a summary of the economic impacts of the rule, as developed in the PREA or REA.

Is there a PREA/REA for every MSHA rulemaking?

Nearly all MSHA rules have a PREA/REA. Occasionally, however, for "small" MSHA rules with modest economic impacts, those impacts may be estimated and described in the preamble to the rule rather than presented in a separate PREA/REA. 

Can anyone make comments on a PREA?

Yes, comments on a PREA can be made during the same regulatory comment period assigned to the rulemaking. Note that there is no comment period for a REA, just as there is no specific comment period for a final rule. 

What is a petition for modification?

A petition for modification is a request to modify the requirements of an existing MSHA safety standard to achieve the purpose of the standard by means different than those required by the standard. Title 30 of the Code of Federal Regulations under Part 44 sets forth MSHA's conditions for requesting a petition for modification. MSHA will grant a petition for modification if the agency determines that the requested alternative provides miners at least the same level of protection as the existing standard.

What is a variance?

When MSHA grants a petition for modification, the petitioner receives a variance. A variance is the right given to the petitioner, by MSHA, to vary or do something different than what an existing MSHA safety standard requires. Variances are available only for safety standards, not health standards.