Due to a recent court decision, the Mine Safety and Health Administration (MSHA) has again revised its workplace examination rule, 30 CFR §§ 56.18002, 57.18002, undoing revisions made in 2018 and returning it to its original form as issued in 2017. (Our June 24, 2019, article, “Court Rejects MSHA’s Revisions to Workplace Examination Rule” has more information.)

MSHA announced in the Federal Register on September 30, 2019, that the changes would take effect immediately, but the agency will take the next 90 days to fully implement the rule, during which time it “will hold informational stakeholder meetings and provide in-person compliance and technical assistance,” as well as provide a copy of its inspector training materials on its website.

The key changes to the rule deal with the timing of the exam and which “adverse conditions and corrective actions” must be recorded. The 2017 rule required that each working place be examined “at least once each shift before miners begin working in that place.” This was revised in 2018 to give operators the flexibility to conduct the exam either before work begins or as work is beginning. Regarding how the exam is to be recorded, the 2017 rule required that all adverse conditions found in the exam be recorded. The 2018 revision required recording only of adverse conditions that could not be corrected promptly.

The industry case challenging the 2017 rule remains pending in the U.S. Court of Appeals for the Eleventh Circuit. The case has been briefed, and oral argument is expected to be scheduled soon.