Workplace Safety and Health News Alert

MSHA Final Rule on Safety Program for Surface Mobile Equipment

December 21, 2023

By: Brett R. Bailey

On December 19, 2023, the Mine Safety and Health Administration’s (“MSHA”) final rule addressing a Safety Program for Surface Mobile Equipment (the “Final Rule”) became effective.  The Final Rule was published December 20, 2023, in the Federal Register and can be found at this link: https://www.federalregister.gov/documents/2023/12/20/2023-27640/safety-program-for-surface-mobile-equipment

The Final Rule requires that all mine operators develop, implement, and update a written safety program for surface mobile equipment at surface mines and surface areas of underground mines. The stated purpose of this final rule is to reduce the accidents, injuries, and fatalities related to the operation of surface mobile equipment, promote and support a positive safety culture, and improve miners’ safety at the mine.

The operator’s written safety program must include four types of actions that the operator will take to reduce accidents, injuries, and fatalities and to improve miners’ safety. The required written safety program must include actions that the operator will take to:

1. Identify and analyze hazards and reduce the resulting risks related to the movement and operation of surface mobile equipment;
2. Develop and maintain procedures for routine maintenance and non-routine repairs for surface mobile equipment;
3. Identify currently available and newly emerging feasible technologies that can enhance safety and evaluate whether to adopt them; and
4. Train miners and other persons at the mine who are necessary to perform the work to identify and address or avoid hazards related to surface mobile equipment.

Each mine operator is required to designate at least one responsible person to evaluate and update the written safety program (the mine operator may designate more than one responsible person if it so chooses.) The responsible person is required to evaluate and update the written safety program for the mine (1) annually; (2) as mining conditions or practices change that may adversely affect the health and safety of miners or other persons; (3) as accidents or injuries occur; or (4) as surface mobile equipment changes or modifications are made.

In a change from the proposed rule, the Final Rule applies to all mine operators, regardless of the number of miners that are employed at the mine. As proposed, the rule indicated that it would only apply to mines employing six or more miners. However, the final version of this rule applies to all mines, including those that employ five or fewer miners.

Additionally, the Final Rule applies to surface mobile equipment used at surface mines as well as surface areas of underground mines. Surface mobile equipment that is being used in underground mines and only brought to the surface for maintenance or repair is not included in the scope of the Final Rule. Surface mobile equipment is defined as “wheeled, skid-mounted, track-mounted, or rail-mounted equipment capable of moving or being moved, and any powered equipment that transports people, equipment, or materials, excluding belt conveyors.” This definition excludes any manually powered tools, such as wheelbarrows, hand carts, push carts, welding carts, cylinder cards, basic hand trucks, or dollies.  Mine operators should note as well that the rule specifically excludes conveyor belts from the rule’s coverage.

Under the Final Rule, operators are required to consult with miners and their representatives in developing and updating the safety program. The operator is required to make available a copy of the written safety program for inspection by authorized representatives of the Secretary, miners, and their representatives. Miners and their representatives will receive, upon request, a copy of the written safety program at no cost (either in electronic or hard copy format).

The operator’s written safety program does not need approval from MSHA, but it will be appropriately reviewed by MSHA during regular inspections. Mine operators have six months to comply with the rule, by July 17, 2024.  It is expected that MSHA will make available compliance assistance information, including FAQs during this six-month period to assist mine operators in preparing the written safety and health program.

For more information or if you have any questions, please reach out to any of Jackson Kelly PLLC’s workplace safety and health lawyers.