November 10, 2017
In the ongoing saga of the Mine Safety and Health Administration’s (MSHA) effort to modify the workplace exam rule, the agency has again published proposed changes to the final rule — and its effective date — that was initially published on Jan. 23, 2017. The most recent proposed rules follow two previous publications by the agency delaying the effective date of the final rule, which was originally set to take effect on May 23, 2017. In March, MSHA published a proposed rule to delay the effective date until July 24, 2017. After receiving comments from stakeholders, the agency published a final rule in May and again pushed back the rule’s effective date, this time to Oct. 2, 2017.
On Sept. 11, 2017, MSHA made available for public viewing two proposed changes to the final rule. The first proposed rule amends the final rule that revised the Workplace Examination standard. The final rule is the subject of a legal challenge in the U.S. Court of Appeals for the Eleventh Circuit.
As has been well documented, the final rule made the following changes to the Workplace Examination standard at 30 C.F.R. §§ 56/57.18002:
• Requires examinations of each working place before miners begin work in that place;
• Requires mine operators to notify miners of adverse working conditions in their working places;
• Requires the examination record to include: the name of the person conducting the examination, the date of the examination, the location of all areas examined, a description of each condition found that may adversely affect safety or health and, when necessary, be supplemented to include the date of corrective actions taken for adverse conditions; and
• Requires operators to make examination records available to miners’ representatives in addition to authorized representatives of the Secretary.
In its most recent changes, MSHA states that it is considering changes to the final rule to address two issues: (1) when working place examinations must begin; and (2) the adverse conditions and related corrective actions that must be included in the examination record. With respect to the timing of examinations, MSHA is proposing to modify the final rule such that a working place must be examined before work begins or as miners begin work. MSHA states that this proposed change “would allow miners to enter a working place at the same time that the competent person conducts the examination.”
With respect to the record of the examination, MSHA is proposing to amend the recordkeeping requirement so that adverse conditions which are promptly corrected need not be recorded. Similarly, a record of corrective action taken would only be required for those conditions that are not promptly corrected. For purposes of this provision, MSHA interprets “promptly” to mean “before miners are potentially exposed to adverse conditions.”
The second proposed rule unveiled by the agency would extend the effective date of the final rule on workplace examinations from Oct. 2, 2017, to June 2, 2018. MSHA states that the delay in the effective date is designed to allow the agency to consider comments on the proposed amendments to the final rule (discussed above), as well as to conduct informational sessions and distribute compliance assistance material prior to enforcement of the final rule. Recall that MSHA promised to provide such compliance assistance prior to the Oct. 2, 2017, effective date but, to date, no such measures have taken place. MSHA sought comments by Sept. 26, 2017, on the proposed extension of the final rule’s effective date to June 2, 2018.
Although the comment deadline concerning the extension of the final rule’s effective date has lapsed, MSHA is still soliciting comments concerning the changes it is considering with respect to the substance of the final rule. Those comments are due on Nov. 13, 2017 — 60 days after the Sept. 12 publication of the proposed rule in the Federal Register. Operators should take time to think about how the final rule and these proposed modifications will affect their operations and submit any comments they have to MSHA by the Nov. 13 deadline.
Dana M. Svendsen is a member in Jackson Kelly PLLC’s Denver office, where she practices in the Occupational Safety and Health Group. She can be reached at 303-390-0011 or firstname.lastname@example.org