regulatory agenda

We discussed the turmoil at the Federal Mine Safety and Health Review Commission (FMSHRC) a couple of weeks ago and how the Biden administration and Senate Democrats need to get working to rid the Commission of its Republican majority. Well, we have progress — sort of.

Moshe Marvit

Good News

President Biden has nominated Moshe Marvit to replace current Chair Art Traynor whose term expires August 30 and Senate Democrats attempted (and failed for now) to move the confirmations of current Biden nominees Mary Lu Jordan and T.J. Baker. Traynor has run into a buzz saw of controversy with Republican Senators over control of FMSHRC, his allegations of ethical lapses by Republicans on the Commission and unprecedented actions taken by Republican commissioners that undermine miners’ rights.

Marvit has worked for FMSHRC for ten years and is currently a Supervisory Attorney Advisor who manages the Pittsburgh field office. And, close to my heart, he’s an active writer on labor issues and has published in the New York Times, Washington Post, the Nation and In These Times.  According to the White House Press Office, “He has been awarded the Labor and Employment Relations Association Ken May Media Award and the Sidney Hillman Award for his writings in the field of workers’ rights.”  He is also a fellow at The Century Fund where he has written a variety of articles on how COVID-19 affects workers, and why the Protecting the Right to Organize (PRO) Act needs to be passed.

Bad News

On the bad news side, last week, Senate Leader Chuck Schumer attempted to push through the confirmations of Jordan and Baker, but Republicans filibustered which means that final confirmation will take much more time. As the August recess approaches, to be followed by mid-term elections, it’s hard to say when a final confirmation vote will take place.

Senator Mike Braun (R-IN) objected to Unanimous Consent to move forward accusing the commission of being “rife with allegations of abuse of power and hostile work environment.” Braun complained that FMSHRC has no Inspector General to provide oversight (which is not uncommon for small government agencies.) Republicans had called for Biden to fire Traynor for confronting the malfeasance of the Republican members and Braun says he won’t support the current nominees until more oversight is provided. It’s a mystery what Jordan and Baker — who are not currently commissioners —  have to do with any of that.

What’s not a mystery is that Republicans have reason to stall until after the midterms.  Theoretically, things might get better now that Marvit has been nominated to replace Traynor, who Republicans have grown to hate. But given Marvit’s active and public pro-labor advocacy, Senate Republicans may need to find another excuse to slow the nominations until after the mid-terms when they hope Republicans will take the Senate.

Meanwhile, Marvit still has to have a Senate Committee hearing and vote, so his confirmation may take a while.  And as I wrote before, because of the Trump administration’s manipulation of FMSHRC nominations, there are now three Democratic nominees up for confirmation at the same time. Generally Republican nominees are matched with Democratic nominees which greases the wheels for bipartisan cooperation.

An additional problem is that once Traynor turns into a pumpkin on August 30, the commission will lack a quorum, which means that no appeals can be decided by the commission, and motions to reopen penalties for contest will be decided by the FMSHRC’s chief administrative law judge. Even Republicans, who often support mine operator challenges MSHA enforcement actions (especially in Democratic administrations), may not be happy with a completely dysfunctional commission where they don’t have the chance to challenge citations or temporary reinstatement of miners who file retaliation complaints.




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