New machine guarding policy

The Mine Safety and Health Administration (MSHA) has come out with revised guidelines on how mining operations may safely and lawfully guard machinery and equipment. In MSHA's "Guide to Equipment Guarding," revised 2004, MSHA has done several things that are hoped will provide more flexibility to mine operators.

Possibly the most significant thing about this guide is that it recognizes for the first time the lawfulness of what has been called "area guarding." If properly constructed, implemented and maintained, guards that cover multiple pinch points will be accepted by MSHA as lawful compliance. The guide provides details on what would be necessary to protect multiple pinch points with a single guard It must be remembered that policy is just that. It is not law. Unlike a regulation, which is law because it is developed according to procedures prescribed by Congress, policy may be adopted by an agency without the safeguards of mandatory procedures for rulemaking.

For MSHA to make rules that have the force of law, it must follow all the procedures prescribed by Congress in the Mine Act. These procedures allow the public and all regulated parties ("stakeholders") to: 1) have an opportunity to be informed in advance, by public notice (in the Federal Register), of what rules and standards are being proposed; 2) have an opportunity to comment on those rules and have their comments considered; and 3) have an opportunity to immediately challenge final rules in court after they are finalized by the agency.

In making policy, on the other hand, there is rarely even a semblance of such safeguards. Usually, MSHA simply announces how it thinks a regulation should be followed. However, in the case of the new guarding policy, MSHA worked closely with the National Stone, Sand and Gravel Association to respond to the many issues the association had brought to its attention.

In rulemaking, the agency tries to achieve a rule that is clear and says exactly what the agency believes should be required. Many rules turn out to be less than completely clear and that is when the agency tries to explain what it thinks is required under the rule. That is where policy comes in. It explains what the agency says the regulation means and how the agency thinks the requirements can and should be met.