Workplace Safety and Health News Alert

MSHA UNVEILS TWO PROPOSED RULES RELATED TO WORKPLACE EXAMINATIONS

September 10, 2017

For clients and friends of Jackson Kelly PLLC
Volume 13, Number 16
©2017 Jackson Kelly PLLC

Today, the Mine Safety and Health Administration (“MSHA”) made available for public viewing, two proposed rules related to workplace examinations in metal/nonmetal mines. Both proposed rules are scheduled to be published in the Federal Register tomorrow.

The first proposed rule amends the Final Rule that revised the Workplace Examination standard. That Final Rule was published on January 23, 2017. As has been well documented, the Final Rule made the following changes to the Workplace Examination standard at 30 C.F.R. §§ 56/57.18002:

Requires examinations of each working place before miners begin work in that place;
Requires mine operators to notify miners of adverse working conditions in their working places;
Requires the examination record to include: the name of the person conducting the examination, the date of the examination, the location of all areas examined, a description of each condition found that may adversely affect safety or health and, when necessary, be supplemented to include the date of corrective actions taken for adverse conditions; and
Requires operators to make examination records available to miners’ representatives, in addition to authorized representatives of the Secretary.

The Final Rule is scheduled to take effect October 2, 2017. It is the subject of a legal challenge in the United States Court of Appeals for the Eleventh Circuit.

In the proposed rule released today, MSHA states that it is considering changes to the Final Rule to address:

When working place examinations must begin; and
The adverse conditions and related corrective actions that must be included in the examination record.

With respect to the timing of examinations, MSHA is proposing to modify the Final Rule such that a working place must be examined before work begins or as miners begin work. MSHA states that this proposed change “would allow miners to enter a working place at the same time that the competent person conducts the examination.”

With respect to records, MSHA is proposing to amend the recordkeeping requirement so that adverse conditions that are promptly corrected need not be recorded. Similarly, a record of corrective action would only be required for conditions that are not promptly corrected. For purposes of this provision, MSHA interprets “promptly” to mean “before miners are potentially exposed to adverse conditions.”

MSHA is soliciting comments on these two proposed amendments. Comments are due 60 days after publication of the proposed rule in the Federal Register. If the proposed rule is published tomorrow, comments would be due November 13, 2017. Additionally, MSHA will hold four public hearings on the proposed rule: October 24, 2017 in Arlington, VA; October 26, 2017 in Salt Lake City, UT; October 31, 2017 in Birmingham, AL; and November 2, 2017 in Pittsburgh, PA.

The second proposed rule unveiled today would extend the effective date of the Final Rule on Workplace Examinations from October 2, 2017 to March 2, 2018. MSHA states that the delay in effective date is designed to allow the agency to consider comments on the proposed amendments to the Final Rule, as well as to conduct informational sessions and distribute compliance assistance material prior to enforcement of the Final Rule. Recall that MSHA promised to provide such compliance assistance prior to the October 2, 2017, effective date but, to date, no such measures have taken place. MSHA seeks comment by September 26, 2017, on the proposed extension of the Final Rule’s effective date to March 2, 2018.

Jackson Kelly will continue to monitor developments related to the Workplace Examination rule and provide updates as they unfold.

OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado

Responsible Attorney
Karen L. Johnston
303.390.0008
kjohnston@jacksonkelly.com

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