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Post-Hoc Legislative History Arrives Too Late for Mine Owners

By E.L. Lipman

Among the interesting issues in an opinion issued on Friday by the U.S. Court of Appeals for the District of Columbia Circuit, was whether legislative history in a Senate Committee Report could be considered during a challenge to rulemaking, in a case where the Senate Report was published after the rulemaking was concluded.

In its petition for review, the National Mining Association asserted that a set of new regulations regarding the availability of mine safety equipment were in fact barred by the provisions of the Mine Improvement and New Emergency Response Act of 2006 ? known by its acronym, the MINER Act. The MINER Act was enacted in June of 2006 and the Committee Report that the Mining Association found helpful to their view was published some six months later. At or about the time the Report was published, the Mine Safety and Health Administration promulgated a set of final rules regarding the availability of mine safety equipment.

Holding that the Mining Association could not base its challenge to the regulations on the later-arriving legislative history, the panel concluded that the Association did not raise its statutory argument with the agency ?although it had ample opportunity to do so between the time Congress passed the MINER Act in June 2006 and December 2006 when MSHA issued the final rule.?

The panel?s complete analysis ? which includes useful summaries on a number of federal rulemaking subjects ? is accessible here.

Full post as published by Within the Scope on January 12, 2008 (boomark / email).