MSHA’s Regulatory Agenda Entering 2017: Part 100 Reform Now A “Long Term Action”

By: Nicholas W. Scala

MSHA recently made a last-ditch effort to solidify some of its rulemaking priorities in the Obama era as lasting initiatives for the Agency to tackle regardless of who may be in charge, in the hopes that even under a changing guard MSHA will move on some of these new regulations.

Quite noticeably, the safety and health agency has put on the back burner any major reform of the Part 100 regulations governing civil penalties, scrapping for now this longtime priority.

The regulatory plan that MSHA projects (in doing so giving at least a suggested road map to the new Administration) came as part of the release by the White House of a fall Unified Agenda for all regulatory agencies. This is the last Obama regulatory blueprint.msha-regulatory-agenda-snip

Incoming Trump officials will likely dramatically scale back the Labor Department’s aggressive rulemaking agenda, and if confirmed, so will Andrew Puzder as Labor secretary. All of this change will, of course, filter down to MSHA.

This last regulatory agenda is telling with regard to what Assistant Secretary Joe Main still wants MSHA to accomplish after he has left.

Most outgoing administrations forgo ambitious new items on regulatory agendas during their last year in office – but there have been some surprises under Obama, fitting the President’s strong pro-regulatory stance over the years. This Administration made it clear it would continue full-throttle on new rules even into the lame-duck days, as evidenced by recent 11th-hour rules.

Of course, this is less the case at MSHA which has a tendency in rulemaking to reach more of a broad consensus with industry and proceed more slowly than some other agencies. New rules are often driven by the findings from specific events and data. Here’s a snapshot based on the final semiannual agenda under Obama of what MSHA still wants to see completed:

  • Exposure of underground miners to diesel exhaust – This is listed in the prerule stage, and a request for comment period has once again been extended until January 9, 2018, following a Partnership meeting with stakeholders;
  • Respirable crystalline silica – This is in the proposed rule stage. OSHA’s issuance of a silica rule for general industry and construction has nudged this issue at MSHA, but given the strong headwinds from industry that OSHA received, it’s really hard to see this priority continuing to gain traction in the Trump-era MSHA. Still, the Agency projects an April 2017 target data for a proposed rule;
  • Proximity detection systems for mobile machines in underground mines – MSHA pegs this in the proposed rule stage with November 2016 for reopening the record;
  • Refuge alternatives for underground coal mines – limited reopening of the record. This is in the final rule stage, according to MSHA, with a final rule projected for April 2017; and
  • Examination of working places in metal and nonmetal mines – This is also in the final rule stage and was slated to be published in December. This may be an 11th-hour rule and one of the last safety and health rules before Obama leaves office (here’s a link to the recording of a webinar we did on this proposal) despite industries continued rallying against finalization.

Part 100 Reform Delayed

What may be most interesting about MSHA’s last agenda under Obama may actually be what’s not in the primary blueprint – most conspicuously, reform of Part 100 regulating civil penalties for mine safety and health violations.

MSHA moved this major item to “long term actions” in the spring unified agenda earlier in the year. The term is really a kind of bureaucratic euphemism for a reversal of fortunes. Despite the Agency working on the proposal for years there is now no slated date for the next step.

MSHA describes in the agenda what it considers a need for civil penalty reform, calling the assessment of these fines “a key component in MSHA’s strategy” to enforce standards, and saying:

“Congress intended that the imposition of civil penalties would induce mine operators to be proactive in their approach to mine safety and health, and take necessary action to prevent safety and health hazards before they occur.

“MSHA believes that the procedures for assessing civil penalties can be revised to improve the efficiency of the Agency’s efforts and to facilitate the resolution of enforcement issues.”

Perhaps recognizing the realities of the new regulatory climate, MSHA has backtracked on this proposal. To be clear, MSHA has not in any way suggested that this issue has become less important, only that it cannot be sure when it can proceed with the next step, which would be a final rule. Now the target date for that is “to be determined.”

MSHA closed out the comment period of the proposed rule back in March 2015, and industry has been bracing for whatever changes MSHA decided to make. This certainly means industry can take something of a “breather” on this but given a chance MSHA may still pursue it in the future.

Conclusion

We can be sure that with the new Trump team coming in January there will be a noticeable ebbing of the tide of new regulations seen under President Obama and his very aggressive agency heads. Even though the changing of party and leadership generally has a more stark impact on, for example, OSHA with its often-ambitious (and politicized) rulemaking, MSHA will likely still see a steep decline in support for change in terms of standards over at least the next four years. This is also a new President who has promised to bring back industries on which the mining sector depends, and that likely means sluggish movement on MSHA’s regulatory plans going forward.

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