By: Nicholas W. Scala

Adhering to what is now an annual requirement since passage of the 2016 Inflation Adjustment Act, on January 15th the Mine Safety and Health Administration (MSHA) published a Final Rule updating the penalties to be used for the assessment of citations and orders in 2020. The increased penalties will determine assessments for mine production operators and independent contractors for all citations and orders assessed after January 15th.

For the most basic citations, the increase is minimal, the statutory minimum penalty for regularly assessed penalties increases from  $135 to $137. But, the 1.764% inflation increase is more noticeable when citations and orders are classified more seriously and therefore creep further up MSHA’s regular assessment penalty conversion chart. For example, the statutory maximum for penalties assessed under 30 C.F.R. Section 100.3 is now $73,901, up from $72,620 in 2019.

Other increases of note include:

• Minimum Penalty for 104(d)(1) Citation/Order
  • Increase from $2,421 to $2,464
• Minimum Penalty for 104(d)(2) Order
  • Increase from $4,840 to $4,925
• Minimum Penalty for Failure to Notify MSHA of an Accident within 15 Minutes
  • Increase from $6,052 to $6,159
• Maximum Daily Penalty for Failing to Abate MSHA Citation (104(b) Order)
  • Increase from $7,867 to $ 8,006
• Maximum Penalty for Flagrant Violations under Section 110(b)(2)
  • Increase from $266,275 to $270,972

Since passage of the 2016 Inflation Adjustment Act, MSHA has until January 15th of each calendar year to increase the penalty assessment limits. The new penalties will become evident as mine operators begin to receive Proposed Assessments and Statements of Accounts from MSHA following the issuance of citations or orders in 2020. The increase in penalties in no way impacts mine operators option to contest any assessed citation or order, and as penalties continue to increase MSHA may find more operators contesting to ease the financial burden.

(For more information on the history of these increases see our 2016 blog post on implementation of the Inflation Adjustment Act and its Catch-up Provisions by the Department of Labor)

By: Nicholas W. Scala and Daniel Deacon

On January 14, 2020, the Mine Safety and Health Administration published a Direct Final Rule revising certain safety standards regarding explosive materials at Metal and Nonmetal (M/NM) mines – specifically relating to the use of electronic detonators.  The direct rule will become effective on March 16, 2020, “unless substantive adverse comments* are received or postmarked by midnight Eastern Standard Time on February 13, 2020.  If adverse comment is received, MSHA will publish a timely withdrawal of the rule in the Federal Register.”

A concurrent Proposed Rule was published in the Federal Register to speed up notice and comment rulemaking should the agency decide to withdraw the direct rule. However, all interested parties who wish to comment should comment at this time “because MSHA does not anticipate initiating an additional comment period.”

Background of Rule

As part of Assistant Secretary Zatezalo’s continued push to embrace technological advancements in the mining industry, MSHA seeks to update an aging regulation to include reference to modern systems. MSHA for the most part has utilized the same definition for detonators since 1979 – with the exception of a minor modification in 1991. The standards have defined “detonators to mean any device containing a detonating charge that is used to initiate an explosive such as electric blasting caps and non-electrical instantaneous or delay blasting caps.” MSHA anticipated that the existing definition would continue to cover new developments in detonator technology but has not found that to be the case given advancements in computer and micro-processing technologies – which have led to the development of “electronic” detonators.

Historically, MSHA’s standards have included only two types of detonators in the definition: non-electric (includes devices such as detonating cords, shock-tube or safety fuse detonators, or a combination of these), or electric (uses electrical currents to initiate detonation).

The addition of electronic detonators (designed to use electronic components to transmit a firing signal with validated commands and secure communications to each detonator, and a detonator cannot be initiated by other means) will serve to update the regulations to include what is at this point the is the technology in use by the majority of operations.

On September 28, 2004, MSHA issued Program Information Bulletin (PIB) No. P04-20, Electronic Detonators and Requirements for Shunting and Circuit Testing. The PIB discussed how to rectify MSHA requirements on shunting and circuit testing with the advanced electronic detonators. During its review of electronic detonators, MSHA found that the systems contained internal safeguards for shunting and circuit testing and that these systems satisfy MSHA regulation as long as the manufacturer instructions are followed.

Proposed Revisions

In 2018, MSHA requested comments from industry stakeholders on which existing regulation(s) should be repealed, replaced, or modified without reducing miners’ safety and health. The changes proposed in this direct rule were largely the result of comments from the Institute of Makers of Explosives (IME), which requested that MSHA update its regulations to recognize the significant developments in safety and sophistication offered by electronic detonators. Continue reading →

By: Nicholas W. Scala

Happy New Year (now you better be in compliance)! For Metal/Nonmetal production operators and independent contractors, welcoming 2020 means the deadline to comply with MSHA’s newest iteration of the Workplace Exam Rule for M/NM mines is here.

Effective January 1, 2020, MSHA’s 90-day enforcement hold on the updated rule expired, and inspectors will now be issuing citations if a production operator or independent contractor is found in violation of the fully implemented 2017 Final Rule.

The process of altering the workplace exam rule from the 2018 Final Rule began in earnest this past June 2019, when the U.S. District Court for the District of Columbia found in favor a labor union challenge to the regulation. The Court found MSHA violated the “No Less Protection” clause of the Mine Act and parts of the Administrative Procedure Act with respect to its rulemaking process. As discussed in our June 2019 blog, the Court ruled, and subsequently ordered after MSHA sought review of the decision, MSHA must make the following changes to the 2018 Final Rule, effectively reinstating the first final version of the Workplace Exam rule from January 2017.

“In reinstating the 2017 Rule, the Court of Appeals put into effect two requirements operators previously did not have to comply with:

1. All workplace exams must be done BEFORE miners enter a working area; and
2. All adverse conditions observed during a workplace exam must be recorded, even if corrected/abated prior to miners entering the working area.

Continue reading →