United States: MSHA Reopens Rulemaking On Workplace Examination Standard And Proposes To Delay Effective Date

Last Updated: September 14 2017
Article by Margaret S. Lopez

On September 12, the Mine Safety and Health Administration (MSHA) published in the Federal Register two proposed rules on Examinations of Working Places in Metal and Nonmetal Mines, reopening the rulemaking to consider two very limited changes. The agency also has proposed extending the effective date of the workplace examination final rule from October 2, 2017 to March 2, 2018.

Timing of Workplace Examinations

The final rule imposes a new requirement that workplace examinations must be completed prior to work beginning in a working place. The first of the two proposed rules would modify this requirement slightly to provide that the examination may "be conducted before work begins or as miners begin work in" a working place. (Emphasis added.)

MSHA explains in the preamble to the proposed rule that this would allow miners to enter a workplace to begin work at the same time that the competent person designated by the mine operator to examine each working place begins the workplace examination. MSHA then seems to narrow this requirement by stating that the timing of the examination still must provide for any adverse conditions to "be identified before miners are exposed." (Emphasis added.)

It is this nuance that would render this proposed change not much of an improvement over the currently effective final rule's requirement. Unless all miners are deemed the competent person conducting the workplace examination, it will be difficult—if not impossible—to ensure that mine operators can give miners timely notice. It also is important to note that the proposed rule's notification requirement still mandates that miners be notified of adverse conditions before they may be exposed to the hazard. This will require many operators to revert back to adhering to the same requirement in the final rule, which requires that the workplace examination be completed before work begins in an area.

Record of Adverse Conditions Found that Were not Immediately Corrected

The only other change in the proposed rule narrows slightly the requirement that adverse conditions be noted on the workplace examination record. The proposed rule removes from the recording requirement adverse conditions that are corrected "promptly." The agency defines "promptly" as before miners are potentially exposed to the adverse condition.

This change would be an improvement over the existing final rule, which requires operators to describe, in the workplace examination record, every adverse condition found in the examination, regardless of whether the mine operator corrected the condition immediately or not. MSHA justified this burdensome requirement in the final rule by claiming that it would help in identifying trends and work areas to emphasize in considering additional safety measures. It was apparent, however, that MSHA primarily intended this new requirement to provide information that inspectors could use to write citations, including elevated negligence findings.

The proposed rule does not remove this recording requirement entirely; therefore, the very real risk remains that inspectors will write citations based on adverse conditions that they see in workplace examination records. MSHA asserts that the proposed rule's exemption from the recording requirement of adverse conditions that were promptly corrected will incentivize operators to address such conditions promptly. The exemption still leaves open room for inspectors to make the wrong assumptions as to how quickly a condition was corrected and thus, whether there was any exposure and whether there was a violation for not recording the condition on the workplace examination. MSHA has failed to provide any assurance to mine operators in the proposed rule that the agency will refrain from writing overlapping citations for a condition that existed in the past (even though the inspector may never have seen the condition) as well as for not recording it on the workplace examination.

Remaining Provisions of Final Rule

The remainder of the rule is not affected by this rulemaking. Some of the key remaining provisions are as follows:

  • A competent person must complete a workplace examination, at least once each shift, for each working place where miners are scheduled to work.
  • Mine operators must provide to miners who will be working in that place prompt notification of conditions found that are not promptly corrected. Mine operators must promptly initiate any corrective actions.
  • The examination record must be completed prior to the end of the shift and it must contain:

    • 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 (except conditions that are corrected promptly);
    • the date the corrective action was taken.
  • The mine operator must keep the examination record for one year and make the record available to MSHA and the miners' representative, with a copy provided upon request.

The proposed rule also has not altered MSHA's guidance in the final rule's preamble that examinations are to be conducted close enough to the start of work in an area such that conditions would not be expected to change.

Public Hearings and Request for Comments

MSHA is accepting comments on these proposed changes until November 13, 2017. The agency also will be holding hearings on the proposal on October 24, 2017 in Arlington, Virginia, October 26, 2017 in Salt Lake City, Utah, October 31, 2017 in Birmingham Alabama, and November 2, 2017 in Pittsburgh, Pennsylvania.

Postponement of Effective Date of the Final Rule

Simultaneously with publication of the proposed rule, MSHA issued a second proposed rule to delay the effective date of the Workplace Examination final rule to March 2, 2018. The additional time will allow MSHA to act upon its proposed changes to the final rule and to issue related guidance and conduct training.


The proposed changes to the workplace examination final rule are a step in the right direction. However, mine operators will likely feel that the proposed changes do not go far enough in providing them the flexibility to tailor their workplace examination programs to their mines. The proposed changes also fail to address in any significant way the most burdensome requirements of the new standard. Ogletree Deakins' Mine Safety Practice Group will continue to monitor the proposed rules throughout their comments periods and beyond.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.