Sunday, March 30, 2008

Behind (At) The (New York) Times?

It was a surprise to see an obscure outfit like the Federal Mine Safety and Health Review Commission make the editorial page of today's New York Times. And I'm even more surprised to see that the Gray Lady's opinion elves sees to have skimped on the fact-checking.

At this point, according to a review by, the election commission, the Consumer Product Safety Commission, the Mine Safety and Health Review Commission, the Chemical Safety and Hazard Investigation Board and the National Labor Relations Board do not have enough members to do their jobs...

The Times editorial writer apparently relied on a month-old story from the Politico website:

Politics freezes regulatory boards
By: Ryan Grim
Feb 28, 2008 05:12 AM EST

The system of federal regulation first launched in 1883 with the Interstate Commerce Commission has become a casualty of the Pennsylvania Avenue battle over nominations....

...The Federal Mine Safety and Health Review Commission’s two remaining members leave it one short of a quorum. Close to 200 nominees for federal appointments stand unconfirmed....

The federal government is running on fumes, and roadside signs suggest the next gas station won’t come until January 2009.....

But a lot can happen in a month.

On March 14 the Senate acted on a batch of nominations including two nominations for the Federal Mine Safety and Health Commission, providing a quorum.

Here's Harry Reid's statement:

I am pleased we were able to reach an agreement to confirm nominees early this morning. Democrats were confirmed to important posts such as the Nuclear Regulatory Commission, the Federal Mine Safety and Health Review Commission, and AMTRAK, among others....

Executive Nominations Confirmed by the Senate: Thursday, March 13, 2008

...Federal Mine Safety and Health Review Commission
Michael F. Duffy, to be a Member of the Federal Mine Safety and Health Review Commission through August 30, 2012...

...Federal Mine Safety and Health Review Commission
Robert F. Cohen, to be a Member of the Federal Mine Safety and Health Review Commission through August 30, 2012...

FYI, here's some links to more about Cohen and Duffy. The Senate did not take any action on a third nomination for the Commission, that of Arlene Holen.

It's true that as of this morning, the Review Commission's website has not been updated and still lists only the names of Comissioners Michael G. Young and Mary Lu Jordan.

So it's not clear if Duffy and Cohen have actually been sworn in. Still, it seems odd that a newpaper like the Times would run an editorial based on month-old facts without apparent awareness of a significant update.

The context of the Times editorial takes us far afield from mine safety:

Unhappily for the country, we have learned that Mr. Bush has no idea when standing on principle becomes blind stubbornness and then destructive obsession. So it goes with his choice to run the Justice Department’s Office of Legal Counsel, Steven Bradbury.

In a lower job in that office, Mr. Bradbury signed off on two secret legal memos authorizing torture in American detention camps. The first approved waterboarding, among other things. When Congress outlawed waterboarding, the other memo assured Mr. Bush that he could ignore the law.

Mr. Bradbury is widely viewed on both sides of the aisle as such a toxic choice that he will never be confirmed. The Senate has already refused to do so twice. Still, Mr. Bush clings to this lost cause, snarling the confirmation process for hundreds of nominees and crippling parts of the federal regulatory apparatus....

...When Mr. Bush refused to withdraw the Bradbury nomination, the Senate’s Democratic leaders decided to stop processing other controversial nominations...

Some will note that Mr. Bush has been just as stubborn in sticking to Richard E. Stickler for chief of MSHA as he has been in sticking to Mr. Bradbury for OLC.

When the Senate refused to confirm Stickler, the White House gave him a recess appointment, which ended last December. After that the Senate still would not confirm Stickler, but he has continued to head MSHA on an "acting" basis.

Meanwhile, a different story about Mine Safety and Health Review Commission resources may remain to be told.

The (theoretically) five presidentially-appointed Commissioners serve as an appellate board, which only decides a selection of cases that are appealed after initial decisions by the Commision's administrative law judges. The ALJ's have the bulk of the work.

Appeals filed with the Office of ALJ's have multiplied since MSHA hiked penalties last year in line with the new MINER Act. (For instance, 714 contests were filed in January 2008 compared with 210 in January 2007.)

Yet dollar appropriations for the Commission have not risen significantly, nor has the number of ALJ's increased much. And the President's latest budget proposal for the Commission calls for a dollar boost of less than 10% next year. (Source: Mine Safety and Health News, a subscription-only publication -- for which I also write.)

It's reasonable to wonder how the Commission will cope with its new workload.


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