Providing guidance on MSHA’s PRO Good Guidance rule

On Oct. 9, 2019, the White House issued Executive Order No. 13891, titled  “Promoting the Rule of Law through Improved Agency Guidance Documents.”

The focus of the executive order was to clarify and streamline guidance practices. Specifically, the executive order was designed to curtail or limit agency practices of formulating guidance which has not been subject to public notice and comment rulemaking procedures. The concern was that, even without this public input, this type of guidance is generally treated by stakeholders – by necessity – as binding law.  

To rein in this situation, the executive order essentially required that federal agencies, including the Department of Labor (DOL), regard this guidance as non-binding. Additionally, it directed agencies to establish procedures for issuing guidance and provide for public notice of – and access to –  such guidance. The executive order also mandated that agencies identify “significant” guidance and develop a framework for enabling public comment for such guidance. Most importantly, the executive order required that agencies develop a procedure by which public stakeholders could petition agencies to withdraw or modify guidance.

DOL response

In response, DOL published a final rule on Aug. 27 in the Federal Register called “Promoting Regulatory Openness through Good Guidance Rule,” which codifies the president’s directive with respect to agency guidance. The agency refers to the rule as the “PRO Good Guidance Rule.”

Under the PRO Good Guidance Rule, all effective DOL guidance documents – including those developed by the Mine Safety & Health Administration (MSHA) – must be made available to the public in a searchable database. The rule makes it clear that any document that is not posted on this database can no longer be relied upon as effective guidance. 

For instance, the rule identifies a number of categories of documents that, if not posted, the public cannot treat as guidance. These categories include opinion letters issued to a person or company regarding a specific compliance issue and legal briefs that may provide insight on government positions.

The rule also commits that any guidance that will have an annual effect on the economy of $100 million or more, or adversely affect – among other things – the economy, productivity, competition and public health or safety, must be designated as “significant” and be accorded at least 30 days of public notice and comment rulemaking. This “significant” designation is also required for guidance that will create an inconsistency with action taken by another federal agency.

Outlook

The PRO Good Guidance Rule took effect on Sept. 27, and the database is up and running. By our rough count, there are 211 MSHA documents posted to the database. All of these documents are classified as “Not Significant.” Consistent with the executive order and the rule, the database makes clear that these documents “do not have the force and effect of law and are not meant to bind the public in any way, except as authorized by law or incorporated into a contract, cooperative agreement, or grant.” It further notes that they are intended only to provide clarity regarding existing requirements under the law, and reiterates that the agency “may not cite, use, or rely on any guidance that is not posted on this site, except to establish historical facts.”

Although election season is upon us and there is no guarantee that this rule will survive a shift in priorities by any possible new administration, this guidance development approach certainly provides a great deal more transparency for operators. It offers mine operators a clearer picture of the guidance that is available and inhibits the opportunity for MSHA to pick and choose what it deems to be pertinent in compliance disputes. Most significantly, operators now have access to an easy-to-use link, right on the database, to petition the agency to modify or withdraw posted guidance. Mine operators and industry stakeholders should take time to review these posted guidance documents and evaluate if changes are necessary.

---

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com

Featured image: P&Q Staff