For the moment, MSHA’s new workplace examinations final rule is again on hold. Today, MSHA officially delayed the effective date of the workplace examination rule from May until July 24, 2017, and seeks input about possible further extensions of time.

The notice, in today’s Federal Register, advises that under the White House memorandum from January 20th, agencies were encouraged to consider delaying the effective date of rules that had already been sent to the Federal Register, such as this one. The notice suggests that MSHA believes both it and mine operators would need more time to comply with the rule, which will impose significant new requirements on mine operators.

MSHA: Agency and industry need more time

For its part, MSHA recognizes in the notice that it needs time to develop compliance assistance materials, including templates for workplace examination forms, as well as to hold informational stakeholder meetings around the country. Likewise, MSHA “understands that mine operators may need time to adjust schedules, develop additional recordkeeping capacity, and in other ways modify the way they currently do business to comply with the rule.”

MSHA also suggests in the notice that “[a]s part of the outreach and compliance assistance process, MSHA would consider issues raised by stakeholders and consider further extending the effective date in order to determine if these issues can be reasonably addressed through compliance assistance and training. MSHA also seeks comments regarding the appropriate length of the proposed extension.”

On again, off again

This official delay is the latest in a series of twists and turns involving the rule, which was originally to take effect in May. (See our recent alert for history of the saga.) MSHA completed the rule in the final days of the Obama administration, but the rule did not appear in the Federal Register until several days into the Trump administration. As a result, the Mining Coalition (a client of Husch Blackwell) and others urged MSHA to retract the rule, in keeping with the new White House’s instructions to pull back last-minute regulations for review.

In response, MSHA initially suggested it would withdraw the rule for a 60-day review, but then the agency announced it had completed that review and would proceed with implementation. Then, on February 22, 2017, MSHA notified industry stakeholders and key members of Congress that it would again pause efforts to implement the new rule pending further policy review by the new administration.

In mid-March, a number of national industry associations have challenged the rule in court. The National Mining Association, the American Iron and Steel Institute, the National Stone, Sand and Gravel Association, the Portland Cement Association, the Georgia Mining Association, and the Georgia Construction Aggregate Association filed a petition in the U.S. Court of Appeals for the 11th Circuit for review of the rule.

Before the latest formal delay, mine operators were left in a vulnerable position as many felt compelled to invest in trying to comply with the rule’s significant new regulatory requirements. Given the cost of compliance and uncertainty about how long the new implementation pause will last, the Mining Coalition, other industry groups and members of Congress are likely to continue efforts to obtain a further delay or withdrawal of the rule.

Rule imposes significant new costs but no estimated benefits

As explained in detailed comments submitted by the Mining Coalition during rulemaking, the new workplace examination rule imposes a number of significant new requirements on “metal/non-metal” mine operators. Although a long-standing regulation already requires mine operators to conduct examinations of work areas during each shift to ensure compliance with safety requirements, MSHA believed that a far stricter regulation was necessary. In June 2016, MSHA issued a proposed rule, followed by a truncated notice-and-comment period. It finalized the rule a few days before President Trump took office.

The final rule requires workers to examine work areas at the beginning of each shift (rather than at appropriate times during the shift). It states that they must examine all areas where miners are expected to work or actually work during a given shift, including mining-related roads on which they will travel. It also imposes significant paperwork obligations, requiring mine operators to make and keep records that detail the name of the person conducting the examination, the location examined, the date, a description of conditions found that may adversely affect safety, and the date on which corrective action was taken. Finally, the mine operator must notify miners in the area of any such adverse conditions.

MSHA said the rule would cost $34.5 million annually but that it was simply “unable to quantify the benefits.”

The Mining Coalition request to withdraw the rule noted that MSHA did not support the rule with any estimate of its benefits. While MSHA estimated the rule’s costs at $34.5 million annually, a much lower figure than some industry estimates, MSHA admitted that it “is not claiming a monetized benefit for this rule.” MSHA said that it simply is “unable to quantify the benefits.” In addition, MSHA acknowledged that it could not separate any additional benefits from the new rule from “those benefits attributable to conducting a workplace examination under the existing standards.”

What do I do? 

Should it move forward, the rule will have sweeping effect. Metal and non-metal miners extract a wide range of minerals, from silver and gold to potash, limestone, clay, salt, cement, alumina, stone, sand, gravel and other minerals regulated by MSHA. According to MSHA, these operations employed 218,864 people in the United States in 2015.

While the rule is informally on hold, MSHA has taken no formal, official steps to pause or delay implementation. The effective date remains May 23rd. Mine operators thus face a potentially high-stakes choice: either hope that the new administration will either delay, pause, or roll back the rule, or prepare to comply just in case. As the effective date continues to approach without any official changes by MSHA, many mine operators are working with their counsel to develop compliance plans to meet the new requirements. In many cases, this will require new systems, procedures and even staffing for:

  • Completing and handling additional paperwork.
  • Checking records to be sure that proper follow-up occurs in documenting corrective actions.
  • Retraining all miners on the new protocols.
  • Auditing crews to ensure that they perform all required examinations of the right places (all work areas) at the right times (before work begins) and with notice to miners of adverse conditions found.