On January 23, and for the first time in nearly 40 years, the Mine Safety and Health Administration (“MSHA”) issued new rules governing the way in which metal/non-metal mine operators must conduct their regular workplace examinations. A Final Rule on “Examinations of Working Places in Metal and Nonmetal Mines” was published in the Federal Register on Monday, January 23, and will become effective on May 23, 2017.
Hours after the new President took office on January 20, however, his Chief of Staff ordered the withdrawal of all regulations finalized by the Obama administration but not yet published in the Federal Register. The directive seemed to include the workplace exam rule, which was scheduled to be published in the Federal Register the next business day, January 23. However, the instruction from the White House came after the decision deadline for the Federal Register’s January 23 issue, and the new MSHA rules were published as planned. For that reason, the Labor Department’s current position is that the workplace examination rules were not affected by the memorandum and that the May 23 effective date remains in place. However, a new Assistant Secretary for Mine Safety and Health has not yet been named, so it is possible that the incoming head of MSHA will take steps to amend the rules or even withdraw them entirely.
The new rules, which will replace the current version of 30 C.F.R. §§ 56/57.18002, require that a competent person designated by the mine operator examine each working place at the mine at least once per shift. Although the timing of the examinations is flexible, depending on what is necessary to ensure miners’ safety, they must be completed before miners begin work in the areas subject to the rule. For the first time, examiners must note on the examination record any adverse conditions they find that cannot be addressed immediately, and miners must be notified about those adverse conditions before they start work.
The rules also impose new recordkeeping requirements on mine operators. Exam records must include the name of the examiner, the date the examination was carried out, the locations that were looked at and, as noted, any adverse conditions that were found. Operators must also record the date on which corrective action was taken – but not what action was taken, or who made the fix. As has always been the case, mine operators must keep examination records for one year, but now they must make them available (and provide copies) to both MSHA inspectors and representatives of miners upon request.
To learn more about the new rules, please see our legal alert.