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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.