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.
- Initiate regulatory action
- Obtain an Office of Management and Budget (OMB) determination of significance of the rule
- Draft proposed rule, preamble, preliminary regulatory economic analysis, and information collection package.
- Clear regulatory action through MSHA
- Clear regulatory action through DOL
- Obtain Secretary of Labor approval
- Obtain OMB clearance
- Publish proposed rule in Federal Register
- Transmit required information to the Small Business Administration Chief Counsel for Advocacy
- Notify interested parties of publication via email
- Receive public comment
- Hold hearings (if needed)
- Revise proposed rule and associated analyses to prepare final rule, preamble, and final regulatory economic analysis and information collection package
- Clear regulatory action through MSHA
- Clear regulatory action through DOL
- Obtain Secretary of Labor approval
- Obtain OMB clearance
- Obtain DOL and OMB clearance on information collection package and obtain paperwork burden control number
- Publish final rule in Federal Register and place the final regulatory economic analysis on the agency’s website.
- Transmit required information to the Small Business Administration Chief Counsel for Advocacy
- Transmit final rule to both Houses of Congress and the General Accounting Office
- 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.