by Pete Galvin

In response to the recent tragedy at the Upper Big Branch (Massey) mine in WestVirginia, the President instructed the Mine Safety and Health Administration (MSHA) to take some rulemaking actions.  Accordingly, it is a good time to take a look at how the President’s own directives and the Office of Information and Regulatory Affairs (OIRA) determinations make it much harder for MSHA to protect this Nation’s miners.

As it happens, the specific rulemaking MSHA was asked to undertake is not likely to call the President’s rulemaking oversight policies into question.  The rule that is apparently to be changed involves the procedures for determining whether a mine is eligible to be charged with a “pattern of violations.”  MSHA can basically shut down a mine’s production unless the pattern (i.e., a whole series of separate violations) is abated.  There are a variety of methods available under the Administrative Procedure Act (APA) to accomplish such a change without extensive notice and comment, provided the agency makes the required findings under the APA — and provided the mining industry decides not to challenge these findings in court. 

The mining industry has a history of challenging practically every action taken by MSH; but  depending upon the scope of the changes proposed by MSHA, the industry might decide to avoid a in order to avoid angering key members of Congress, and the President, who would like to see quick action on this matter.  Moreover, even should notice and comment be utilized, with the President behind this initiative one would presume OIRA would not want to press for its own independent review of the matter.  In the worst case, the Congress can quickly move the process along by requiring MSHA to issue an interim final rule within a few months, or use it as the starting point for more far-reaching legislation.  

Leaving aside this immediate action, however, once MSHA determines the cause of the explosion, it may well have to take additional rulemaking action to require mine operators to adopt new technology or adjust mine practices to avoid a recurrence of this situation.  This is just what happened after a series of mine explosions in West Virginia and Kentucky in 2006, and then the collapse of a mine in Utah a year later.  Some of this was required by the Congress under the MINER Act or subsequent appropriation riders, and some was undertaken by MSHA on its own.  It is too early to say exactly what will happen as a result of the investigations and Congressional oversight triggered by this latest disaster, but if history is any guide there will be notice and comment regulation required.

Unfortunately, the Obama Administration is currently imposing on MSHA the same analytical and time burdens that were imposed by the Bush Administration (including, according to CPR’s blog, continued oversight of agency guidance).  According to MSHA’s latest regulatory agenda, all but one of their regulatory initiatives has been designated as “Significant Other.”  This is a designation used by OIRA when it decides that although its review is not required by Executive Order, OIRA is going to conduct a review in any event.  These reviews, both at the proposed and final rulemaking stages, take time (in addition to reviews by the Department of Labor, in which MSHA is housed).  Moreover, these reviews give the mining industry and others a chance to go the White House and lobby for their position.  In fact, a review of the meetings that have taken place on rulemaking items in recent years – information published by OIRA on its website – indicates that the mining industry is a very frequent flyer in this regard.  In fact, the list notes two meetings in late 2006 and early 2007 about civil penalty regulations.  

So why do these reviews? 

It certainly isn’t because OIRA has any expertise in the highly technical issues involved in mine safety and health.  The reason for such reviews is to ensure that MSHA, like other agencies, has complied with the requirements of all Executive Orders and instructions on rulemaking and/or risk assessment, and complied with the Paperwork Reduction Act.  Either this White House doesn’t trust agency heads to do their jobs, or it is offering what political cover it believes is still necessary for agencies like MSHA. 

Beyond the question of whether reviews are necessary is a more fundamental question – are all the requirements Executive Orders and directions impose on MSHA really necessary?  After all, they go beyond the analytical and rulemaking requirements established by the Congress in this carefully crafted legislation, and they are not reviewable by the courts.  Conducting the required analyses takes considerable time in many cases, and eats up very limited regulatory resources – thus limiting what an agency can accomplish in a single Administration.

These requirements on regulatory agencies like MSHA were established and adjusted over the last two decades by Republican and Democratic administrations alike; often because a particular administrator believed such requirements were necessary or useful, and often in an effort to respond to Congressional initiatives to curb the activities of rulemaking agencies.  To some extent those actions may have helped keep the Congress from enacting less flexible and more onerous requirements on all regulatory agencies.  A good example were the “regulatory reform” provisions in the Gingrich “Contract for America” in 2005, an effort in which I was a direct participant and observer. 

As it happens, when the Congress was advised that some of the proposed changes it was considering would affect MSHA in particular, and that the President would veto the legislation, the Senate was unable the defeat a filibuster and proceed with the bill; but had the Clinton White House not continued to enforce its rulemaking Executive Orders, there are many who think that the bill would have passed.  

Nevertheless, times have changed, and the issue of whether to make adjustments in the Executive Orders and/or OIRA oversight have been under consideration by the White House.  Public comments were solicited and received.  Despite more than a year of study, however, the White House has yet to tip its hand.  Sadly, with so many major legislative initiatives in play, it may be reluctant to take on this issue for some time.  It certainly is well aware of all the rhetoric generated by the “tea parties” and members of the opposition about “overregulation” and “socialism”, and the business lobbies in Washington would use any hint of movement to have a field day generating new contributions for themselves. 

Meanwhile, of course, the agencies have to live with the additional burdens and delays, notwithstanding the real impact this has on their ability to carry out their missions.  And if they cannot carry out their regulatory missions, then a frustrated Congress – which would rather not have to deal with these highly technical issues, and set up the regulatory agencies for just that purpose – has to take them on.  That Congress, of course, is now led by the same party as the President. 

What then, can be done in the short term about MSHA while broader policy changes on regulatory policy remain under review? 

Section 7(c) of the S-MINER Act, passed by the House in 2008 (but not by the Senate) a special study would have required a complete review of how all of the non-MSHA rulemaking requirements were impacting the agency’s performance.  But that was two years ago, and hardly needs to be done in light of the review being conducted by this White House.

I see two ways to help MSHA do its job while the Administration continues to ponder its overall regulatory approach.  The first, which is what was more or less done by the MINER Act and subsequent appropriation bills, is to give the agency a legal deadline for completing a laundry list of actions – and perhaps some additional resources.  This allows them to use interim final rulemaking to get a result into place in a reasonable time, while continuing to follow all the current analytical and procedural requirements imposed by the White House.  That will require Congressional action.  The second option is for the White House to exempt MSHA from the review process, and compliance with any regulatory requirements not in its statute, for a one year period, renewable after a review, due to exigent circumstances. 
Peter Galvin is a retired, senior advisor, mine safety and health, House Education and Labor Committee, and retired, Counsel for Administrative Law, US Department of Labor.  [Editor’s note: Pete Galvin was loaned to MSHA during the later part of the Clinton Administration and he worked with a small team of talented MSHA technical experts to write the proposed and final rules on noise (coal and metal/non-metal), and diesel particulate matter (coal and metal/nonmetal.)]