In a little-noticed “information collection” notice, MSHA asked for public comment about whether its petition for modification process is necessary, practical, or burdensome. Last week, Husch Blackwell’s Mining Coalition weighed in with ideas for how MSHA can reform the process.

Periodically, under the Paperwork Reduction Act, MSHA and other agencies seek public comment to continue collecting certain information from the public. The goal is to ensure that the collections are not overly burdensome and have appropriate value.

In this case, the routine request for comments involved MSHA’s petition for modification (PFM) process. Under the Mine Act, that process allows mine operators to seek permission to use an alternative means of complying with a particular regulation. To receive a modification of a standard, they must show that the the alternative guarantees at least as much protection as the standard or that applying the standard as written would reduce safety at a particular mine.

In particular, MSHA asked whether the PFM process is necessary for MSHA’s operation and has practical utility; whether MSHA’s estimate of the burden on submitters is accurate; what can be done to enhance the quality, utility, and clarity of information collected; and how the burden of submitting can be reduced.

Mining Coalition offers specific PFM reform ideas

The Mining Coalition, an informal group of leading metal/non-metal companies, took the opportunity to submit ideas for reforming MSHA’s PFM process. The Coalition noted that the process can be extremely costly and can take years to complete. MSHA’s current process also prevents operators from joining together on petitions or grouping related requests.

In sum, the Coalition concluded that, “The process was intended to be nimble and far less burdensome than notice-and-comment rulemaking. It could allow MSHA to respond efficiently to changes in mining, advances in technology, and unique circumstances at particular mine sites. But, with a process that takes so long, petitions can become moot before they even receive a ruling.”

The Coalition proposed six reform ideas, urging that MSHA create a PFM process that would:

1. “Be streamlined for faster output. A revamped process, perhaps with greater PFM review resources, would be worth the effort as it would pay dividends on MSHA’s efficiency and safety goals.”
2. “Make the investigation process more inclusive and interactive, as the statute suggests, including a provision for an interested party to provide input (such as by requesting a public hearing) during the investigation.”
3. “Reduce duplicative petitions by allowing mine operators to apply together when seeking the same modification for the similar reasons.”
4. “Allow a mine operator to seek modification of multiple standards at once when justified by the same or related facts.”
5. “Allow operators to seek the same modification at multiple properties facing similar circumstances and issues (the current regulation requires “identical issues of law and fact”).”
6. “Once a petition is granted, allow other mine operators to elect the same modification if they have similar circumstances/justifications.”