The Mine Safety and Health Administration (MSHA) recently announced another delay in the effective date of its controversial final rule on workplace examinations in metal/nonmetal operations. At first glance, we might look at MSHA’s delays and assume a regulation delayed is a regulation denied. In the case of MSHA’s final rule on workplace examinations the safer bet is the agency is only now coming to terms with the magnitude of the rule’s impact on the metal/nonmetal industry and its own inspection force.

It was not long ago – July 22, 2015 – when MSHA laid the ground work for the final rule by announcing Program Policy Letter (PPL) P15-IV-01. The PPL was the forerunner to the new workplace examination rule. At the time of the PPL’s announcement, its importance was significantly watered down by MSHA’s top officials. Many of us remember the prediction that it did not create a change in the workplace examination regulation made by MSHA’s administrator for metal/nonmetal during the stakeholder’s meeting announcing the PPL. Likewise, the follow up comment from MSHA’s deputy assistant secretary for Operations noting there would be no changes to the rule despite the issuance of the PPL.

What we know now is the opposite was true at the time and that many portions of the PPL were included, and expanded upon, in the final workplace examination rule. In its final form, the rule contains overly broad and unclear language, undefined terminology and limitless chances for MSHA inspectors to interpret key terminology in the rule, just to name a few. Most importantly, the final rule bears an uncomfortable resemblance to the obligations placed on coal operators in the pre-shift examination requirements of 30 C.F.R. Section 75.360.¹ We have discovered this latter issue alone – a classic example of trying to drive a square peg in a round hole – will create numerous operational problems for the vastly diverse metal/nonmetal industry, many of which were well-vetted by the industry during the notice and comment period of the final rule.

On January 23, 2017, despite vigorous comments from the regulated community, MSHA published the current rule with an effective date of May 23, 2017. Two months later, on March 27, 2017, MSHA announced it was extending implementation of the rule to July 24, 2017. The reason for the delay, as articulated by MSHA in the Federal Register, was to assure mine operators and miners have the training and compliance assistance needed prior to the rules effective date. Interestingly, MSHA’s initial request for a delay was silent on the issue of additional training of MSHA inspectors on how to consistently enforce the new rule.

On May 22, 2017, one day short of the final rule’s initial implementation date, MSHA announced its latest delay moving the implementation date to October 2, 2017. This time MSHA contended the delay was necessary to allow the agency additional time to train and offer compliance assistance to mine operators using a variety of compliance assistance materials and through informational meetings at various locations around the country. The latest delay request is telling because MSHA announced it intends to train its inspectors in an effort to assure consistent enforcement of the new requirements of the rule.

A couple of points can be gleaned from MSHA’s delay requests. First, it appears MSHA is finally coming to terms with the problems created by a metal/nonmetal workplace examination rule formulated nearly whole cloth on a coal framework and applied in an industry with strikingly dissimilar mining methods than the coal industry. Reasonable minds may differ, but it is noteworthy MSHA waited until after the rule’s adoption to seek comment from the metal/nonmetal industry on how long it would take to train and provide compliance assistance before the rule is implemented. An argument can be made MSHA’s request was an attempt to understand the enforcement problems awaiting the agency and industry compliance problems that will surely arise as the agency endeavors to drive this square peg into a round hole.

Second, when MSHA is talking compliance assistance training and developing consistency within its inspection force, history suggests this is code language for how the agency intends to enforce the new rule. It is important for metal/nonmetal operators to keep in mind MSHA’s enforcement positions do not always comport with what a particular regulation legally requires of them. MSHA inspectors routinely issue citations and orders based on MSHA policy and not law. The ability to detect the difference between the two positions is crucial for a company to manage and maintain a proper and accurate enforcement history.

As the new workplace examination rule unfolds, operators should be keenly aware of their rights and work to assure safety personnel who accompany MSHA inspectors have a solid base of knowledge of MSHA’s authority, as well as its limitations. Likewise, operators should educate safety personnel on the proper method of handling MSHA inspectors during the inspection process.

A small amount of pre-enforcement training can make a big difference when conferencing enforcement actions with the agency or in a challenge before the Federal Mine Safety and Health Review Commission. The new workplace examination rule and MSHA’s approach toward enforcing it is expected to provide MSHA ample opportunity to write citations and orders. Do not be caught flat-footed when dealing with the new workplace examination standard – knowledge is power.

_{1 This should come as no surprise because on June 7, 2016, during a stakeholders meeting, former MSHA Assistant Secretary Joe Main admitted the notification and communications of hazards to miners mimicked underground coal pre-shift examinations.}