MSHA Issues Final Powered Haulage Rule

Quick Hits

• MSHA requires all operators and independent contractors that use surface mobile equipment at surface mines and surface areas of underground mines to have a written safety program for mobile equipment.
• At least one person must be designated to update the plan as needed or as conditions warrant, including at least one update annually.
• The rule takes effect on January 19, 2024, but compliance through the creation of a written safety plan is not required until July 17, 2024.

Unlike the proposed rule that was drafted to exclude operators with five or fewer miners, the final rule applies to all operators and independent contractors utilizing surface mobile equipment at surface mines and surface areas of underground mines. (The final rule does not apply to belt conveyors).

The final rule defines “surface mobile equipment” to mean “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, at surface metal and nonmetal mines.” The rule notes specifically that the definition of “surface mobile equipment” is meant to exclude “any manually powered tools, such as wheelbarrows, hand carts, push carts, welding carts, cylinder carts, basic hand trucks, or dollies.”

The rule requires operators to develop a written safety program for mobile equipment within six months of the effective date of the rule. It is effective January 19, 2024, but compliance through the creation of a written safety plan is not required until July 17, 2024.

To comply with the rule, an operator or contractor must “develop, implement, and update a written safety program for surface mobile equipment to reduce the number and rates of accidents, injuries, and fatalities.” An operator must designate at least one person to update the plan as needed or as conditions warrant, including at least one update annually.

The rule requires that any plan:

“(1) Identify and analyze hazards and reduce the resulting risks related to the movement and the operation of surface mobile equipment;

(2) Develop and maintain procedures and schedules for routine maintenance and non-routine repairs for surface mobile equipment;

(3) Identify currently available and newly emerging feasible technologies that can enhance safety at the mine and evaluate whether to adopt them; and

(4) Train miners and other persons at the mine necessary to perform work to identify and address or avoid hazards related to surface mobile equipment.”

In developing a safety plan for mobile equipment, operators may want to consider information such as information on accidents, near misses, and maintenance records in order to draft a plan that addresses safety concerns in this regard. “Cookie cutter” type plans likely will not satisfy MSHA’s requirements. The rule requires that a plan be tailored to the needs and operational circumstances at an operator’s particular mine.

MSHA’s preamble states that the second component of a plan is not necessarily meant to impose new obligations for maintenance and repair procedures. Operators may elect to use their existing procedures or modify existing procedures based upon an evaluation of mobile equipment risks.

The third requirement places the onus on the operator and, in particular, the individual designated as responsible for the plan, to evaluate current and future technology relating to mobile equipment for use at a mine. MSHA’s rule does not provide factors for consideration on how to make such an evaluation and leaves open the question of feasibility of such use of technology.

With regard to the last requirement, MSHA noted in the preamble to the rule that operators must only integrate existing training procedures for miners and other people working at the mine to identify and address hazards regarding mobile equipment. A new training program is not required.

MSHA expects operators and independent contractors to coordinate with regard to written safety plans, either with contractors adopting their own particular plans and complying with operators’ site-specific requirements or operators integrating contractors’ plans into their own.

MSHA intends to enforce the rule by reviewing the written safety programs during regular inspections, but the rule does not require advanced approval of the plans by MSHA. The rule requires operators and contractors to make a copy of the plan available for inspection by MSHA and to provide copies upon request to MSHA and to miners and their representatives, including, for example, a union representing miners employed by an operator.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments with respect to the powered haulage rule and will provide updates on the Mine Safety blog.

For more information on MSHA’s final rule, join us for our upcoming webinar, “MSHA’s New Surface Mobile Equipment Rule: Tips for Compliance,” which will take place on Tuesday, February 6, 2024, from 2:00 p.m. to 3:00 p.m. (EST). The speakers, Margaret S. Lopez and Philip K. Kontul, will discuss the new rule’s requirements and how to plan for compliance. Register here.

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