Conventional wisdom in Washington holds that Democrats regulate and Republicans enforce. A Republican administration will focus on the enforcement of existing rules. With a Democrat in the White House, the focus will shift to rulemaking. Not surprisingly, this bit of conventional wisdom is simplistic and inaccurate; the reality is more complex. Nevertheless, the Trump administration promulgated fewer rules than the Obama administration, and the Biden administration plans to promulgate more than the Trump administration.
The U.S. Mine Safety and Health Administration’s (MSHA) rulemaking plans include a powered haulage rule, followed by a Respirable Crystalline Silica (RCS) rule. MSHA published its proposed Safety Program for Surface Mobile Equipment rule on September 9. Public comments on the rule were due November 8. No details are available on the RCS rule, but it is safe to assume MSHA will propose a reduction of the silica PEL from 100 µg/m3 to 50 µg/ m3 or less.
MSHA’s current rulemaking plans aren’t limited to just these. There are four rules on the agenda, and it is laying the groundwork for more.
MSHA is required to publish a list — a regulatory agenda — of regulations it is “actively considering for promulgation, proposal or review during the coming one-year period.” From that description, one might assume the rules on MSHA’s Semiannual Regulatory Agenda are the rules that will see the light of day, rules that MSHA will propose, finalize and eventually enforce. However, that’s often not the case. An item may appear on the agenda and stay there for some time — years — without any additional public action.
Here are the four items on MSHA’s Semiannual Regulatory Agenda:
Respirable Crystalline Silica;
Alternatives to Petitions for Modification: Non-Permissible Surveying Equipment;
Safety Program for Surface Mobile Equipment;
and Testing, Evaluation and Approval of Electric Motor-Driven Mine Equipment and Accessories (30 CFR Parts 18 & 74).
Again, the fact that an item appears on MSHA’s agenda doesn’t mean MSHA will promulgate a rule on it. The appearance of an item on MSHA’s rulemaking agenda is just a preliminary step in that process. Also, keep in mind that by law and by design, the rulemaking process is lengthy. Believe it or not, MSHA moves faster on average than many agencies, but it would be tough for MSHA to promulgate a rule in less than a year. Two to three years is the norm, particularly for a major rule.
All but the last rule on MSHA’s current agenda (the Part 18 revision) are in the proposed rule stage, although MSHA hasn’t yet published the proposed versions of these rules. MSHA lists 22 different steps in the rulemaking process, and the publication of a proposed rule is the eighth step on MSHA’s list.
The process can be broken down into three stages: (1) pre-rule or preliminary; (2) proposed rule; and (3) final rule. The preliminary rulemaking stage includes such actions as the publication of a request for information or an advanced notice of proposed rulemaking. If MSHA decides to move forward, we get to the proposed rule stage. This stage kicks off with the publication of a notice of proposed rulemaking. The fun really begins at this point, with public comment period(s), public hearing(s) and other actions that may (or may not) lead to publication of a final rule.
The final rule stage is the last, but it’s not necessarily the end of the process. After a final rule is published, it may be challenged in court. A successful rulemaking challenge might kill the rule altogether, require the agency to make changes to the rule or produce an agreement to change the rule in some way. However, the odds of successfully challenging a rule usually aren’t high.
MSHA published its proposed rule on powered haulage, but it may take MSHA a year or more to finalize that rule. MSHA will not likely publish anything on RCS this year. MSHA will likely need two to three years to promulgate an RCS rule.
MSHA’s rulemaking agenda is set to grow. MSHA’s Office of Standards, Regulations and Variances (OSRV) wasn’t dormant or idle in the last administration, but it is looking to ramp up and staff up now. For fiscal year 2022, MSHA OSRV has requested an “increase of $2,260,000 and [an additional] 12 [employees] to support MSHA’s priority to strengthen regulatory efforts.” MSHA plans to use the additional funding and staff to promulgate the four rules on its current agenda, to review the effectiveness of its current respirable coal dust standards, and to “update and clarify” 30 CFR Part 50, MSHA’s injury and illness recordkeeping standards.
Of course, MSHA’s rulemaking plans may change after a new assistant secretary for MSHA is nominated and confirmed. Also, MSHA’s rulemaking focus may shift and change with time and as new issues arise or trends emerge. However, the powered haulage rule is moving along now, and MSHA will likely publish a proposed rule on RCS in 2022.
Brian Hendrix is a partner with Husch Blackwell. He can be reached at email@example.com.