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72 • ROCK products • August 2018 Aggregates Industry Almanac Law E very time an administration changes, the new folks in charge get to appoint the new leaders of all of the gov- ernment agencies. With a few exceptions, this means that the appointments reach down to the Deputy Assistant Secretary level in cabinet agencies like MSHA and OSHA. The appointment process is not always easy. Appointments for positions at the Assistant Secretary level and above require Senate confirmation, which is not always easy to get regardless of which party holds the Senate majority. For instance, most of you who operate on both the MSHA and OSHA side are likely aware that the administration's choice for Assistant Secretary for Occupational Safety and Health, Scott Mugno, was not confirmed by the end of the previous Senate session and, although re-approved by the Senate HELP Committee, is still awaiting confirmation by the full Senate. What is almost universally true about this ritual is that, while the folks that are confirmed for the positions may know a good deal about the subject matter of the agency they are to direct, they also generally know very little about how agencies operate and how to navigate the politics of the bureaucracy. The result of this situation almost always is that the senior career folks at the agency end up effectively running the agency for the first year or so until the new political appointees get their sea legs. The other thing that is almost universally true is that all agencies (including the relatively small ones like MSHA) are similar to big ships in two ways; they are hard to stop and hard to turn. So what does this all mean to us? First, it means that we prob- ably shouldn't have been surprised at how the workplace examination rule has turned out. While the litigation against it has not been formally ended, it appears that there will not be any further action taken against it. Attempts to find resolution of a number of continuing ques- tions have been largely brushed aside and, although we have been repeatedly assured that questions and concerns would be addressed in pre-enforcement guidance and that inconsis- tent enforcement issues would be resolved before October; that has largely not occurred. In other words, it looks like the remaining issues will have to be addressed through litigation, potentially causing a spike in citation contests. Good news for lawyers. Bad news for everyone else. On the other hand, there are a number of signs that the new leadership is bringing some new, more collaborative, result-oriented approaches to the agency. The upper eche- lons of MSHA management have spent more time in the field than have any group in recent memory. For the most part, they have been extremely responsive and sensitive to concerns that have been brought to them from operators signaling that they are committed to safety, and that their approach is not necessarily going to focus on increased enforcement. MSHA's recently announced regulatory agenda and spate of "Requests for Information" (RFIs) also presents an interest- ing mix. Assistant Secretary Zatezalo has made no secret of his concern about the continuing occurrence of mobile equip- ment accidents, including the role that seat belt use plays in the severity of those accidents. And rightly so. These accidents continue to make up a signif- icant percentage of fatalities and present a heightened risk of catastrophic results. As a consequence, one of the first actions taken by the new leadership was an RFI seeking information on ways to prevent those types of accidents. While we await the responses to that request, it's worth noting that it concentrates on seeking engineering solutions to those accidents, such as proximity detection and safety interlocks. While these approaches might indeed reduce accidents, the focus is once again on specifically tailored engi- neering controls rather than human factors such as fatigue and distraction, which have far wider implications. Of course, we haven't seen what, if any, rulemaking might come from this. But while the Act certainly places all responsi- bility on operators, that doesn't mean that MSHA is prohibited A Measured Approach On Issues of Leadership, the Situation is Always Fluid at MSHA and OSHA. By Mark Savit Mark Savit is senior counsel at Husch Blackwell. As a member of its Energy & Natural Resources group, Savit counsels clients in government investigations and regulatory matters, and litigates improper enforcement actions and whistleblower cases. He can be reached at mark.

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