On January 23, 2017, the Mine Safety and Health Administration (MSHA) published its long-awaited final rule regarding modified workplace examination requirements in non-coal mines.  The rule was originally scheduled to go into effect in May of this year, but implementation was delayed twice until October 2, 2017.

Over the past several months, operators have been widely implementing organizational changes in preparation for the October 2 effective date of the new requirements; however, on September 12, MSHA published two additional proposed rules—one rule proposing to again delay implementation of the final rule, and a second rule, once again, proposing additional substantive changes to the final rule.

The current final rule most notably requires workplace examinations to be conducted before work begins and ramps up notification, recording, and recordkeeping requirements associated with the examination.  For example, the current final rule requires that the examination be recorded prior to the end of the shift, that all miners working in the affected areas must be promptly notified of hazardous conditions, and that all discovered conditions that may adversely affect the safety and health of miners be recorded, even if they are corrected before work begins.  Other requirements can be found here.

The proposed further delay in effective date of the final rule is designed to allow time for public notice and comment on MSHA’s two substantive changes to the final rule.  First, MSHA is now proposing to change the timing of the workplace examination to occur either “before work begins,” as currently drafted, or “as miners begin work.”  Importantly, however, adverse conditions must still “be identified before miners are exposed,” thereby raising questions as to whether this modification practically changes an operator’s requirements.

Second, the proposed rule would require operators to only record hazards that have not been corrected before miners might be exposed to them, as opposed to allhazardous conditions under the current final rule.  Although this provision would lower the likelihood that MSHA could use an operator’s own examination records against them to issue citations for conditions promptly corrected, it does not remove this risk altogether.  The remaining provisions remain unaltered.

Appearing to change course from the rationale underlying the current final rule, MSHA has opined that substantively this modification will give operators greater flexibility to manage their safety and health programs without reducing protections associated with the examination.  MSHA has also stated that the change would save operators approximately $27.6 million in annual operating costs.  In addition to providing an opportunity for notice and comment, MSHA has also said the associated delay will “offer additional time for MSHA to provide stakeholders training and compliance assistance.”

The current proposed delay would extend implementation of the final rule until May 2, 2018.  Comments on the delay must be received by MSHA by September 26, 2017.  In the meantime, MSHA will take public comments regarding the substantive changes for 60 days following publication or until November 13, 2017.   Four public hearings will also be held in Arlington, Virginia (October 24, 2017), Salt Lake City, Utah (October 26, 2017), Birmingham, Alabama (October 31, 2017), and Pittsburgh, Pennsylvania (November 2, 2017).  Each hearing will begin at 9 a.m. local time.