This week, the Mine Safety and Health Administration notified industry stakeholders and key members of Congress that it will once again pause efforts to implement its new workplace examinations final rule, pending further policy review by the new administration.
This week’s announced “pause” is yet another twist in the roller-coaster roll-out of the rule (see our recent alert for more about the rule). MSHA completed the rule in the final days of the Obama Administration, but the rule did not appear in the Federal Register until several days into the Trump Administration. As a result, the Mining Coalition and others urged MSHA to retract the rule for further review, in keeping with new White House’s instructions to pull back last-minute regulations for review. Initially, MSHA suggested it would withdraw the rule for a 60-day review, but then the agency announced that it had completed that review and would proceed with implementation. Now, with new administration officials beginning to fill out the ranks of the Department of Labor, the rule’s roll-out is once again on hold.
MSHA conveyed the news of the pause in private telephone calls on Wednesday to various industry stakeholders, including the Mining Coalition (a client of Husch Blackwell), national industry associations, and members of Congress. However, MSHA has not yet taken any formal steps to change the May 23rd effective date of the rule, leaving mine operators in a vulnerable position as they still must invest in trying to comply with the rule’s significant new regulatory requirements (see an overview of the rule and recommended action steps in our last alert). Given the cost of compliance and uncertainty about how long the new implementation “pause” will last, the Mining Coalition, other industry groups, and members of Congress are likely to continue efforts to obtain a more formal delay or withdrawal of the rule.
Many groups are opposing the rule through informal conversations with the new administration and Congress. As the effective date approaches and remains unchanged, however, others may also decide to challenge the rule in a U.S. court of appeals. The rule may be particularly vulnerable to legal challenge given that MSHA stated it could not quantify the benefits of the rule. The deadline for filing a legal challenge is March 23rd, but it is not clear that MSHA intends to complete its internal review of the rule before that deadline.