MSHA decided to move forward with its controversial Examination of Workplaces in Metal and Nonmetal Mines Rule without regard to a White House Memorandum requesting federal agencies to delay rules for sixty days. (see our Blog on this Rule from October https://www.mshalawadvisor.com/2016/10/mshas-proposed-rule-examination-of-working-places-in-metal-and-nonmetal-mnm-mines-draws-criticism/) The Rule became final on January 23, 2017 with an effective date of May 23, 2017. Although a White House Memorandum dated January 20, 2017 requested that all federal agencies delay the implementation of final rules for sixty days, MSHA determined that because this rule was already on public display on January 17, 2017, but not actually final until January 23, 2017, it could not be withdrawn. And, if you are now wondering how this makes much sense (since the rule was not final by January 20th), MSHA further determined that regardless of this issue – whether it was a final rule covered by the memorandum or not – the final rule was not going to be effective until May 23, 2017. Therefore, MSHA rationalized that since the implementation date was over sixty days away, it would have plenty of time to review any issues created by the final rule prior to its effective date, which was ultimately the purpose of the January 20th White House Memorandum. So, in other words, no harm no foul….
Whether all of this was the meaning and intent of the January 20th Memorandum or not, this likely leaves any decisions related to this rule to the new Assistant Secretary for the Mine Safety and Health Administration. Now we wait to find out who that will be and the direction of MSHA during this Administration.