The problem with MSHA’s ‘fair notice’

By and |  January 26, 2022
Aggregate producers may see rulemaking on powered haulage safety in 2020, perhaps incorporating requirements for deploying new tech into current safety standards. Photo by Kevin Yanik

While MSHA may vacate a citation due to a lack of fair notice, that isn’t always the end of the issue. Photo: P&Q Staff

Like many regulatory agencies, the Mine Safety & Health Administration (MSHA) has long struggled with maintaining consistency in applying the standards it enforces.

Sometimes, the source of the inconsistency can be traced to a specific inspector or field office supervisor who extends the requirements of a standard in a new way. This can often be corrected through discussions with the district, either informally or through conferencing a citation.

When MSHA leadership changes, however, far-reaching policy changes can spawn new interpretations of existing standards. When the direction comes from the top, the agency may be unwilling to revert to the former meaning of a standard, unless ordered to do so by a court.

While it may be too soon to know for certain what new interpretations MSHA may try to impose on existing standards under the Biden administration, now is a good time to review the concept of fair notice, which is one of the central arguments in challenging agency inconsistency.

What is fair notice?

In order to provide due process, a government regulatory standard must provide notice of what the standard requires or prohibits. This is known as “fair notice.”

The Federal Mine Safety & Health Review Commission will find that a mine operator had fair notice if “a reasonably prudent person familiar with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard.”

In making a fair notice analysis, the commission considers a number of factors, including the regulation’s text and placement in the overall regulatory scheme, its history and purpose, the consistency of the agency’s enforcement, whether MSHA informed stakeholders of its interpretation, and more.

If the commission finds that the operator acted as a reasonably prudent person would in trying to be compliant – and that the operator did not have fair notice that MSHA would apply the standard in the particular way at issue – then the commission will vacate the citation. MSHA may also vacate a citation in informal conference for lack of fair notice before it ever even gets to the commission. This does not necessarily end the matter, though.

Headshots: Bill Doran and Margo Lopez

Doran (left) and Lopez

The complications

Every so often, we are sent citations to contest where it is evident the inspector applied the law in a new way that the operator could not have foreseen.

We then present the argument to MSHA, either in a conference or a settlement negotiation, and the agency agrees and vacates the citation. This sounds like a victory for the operator – and it may well be – but only time will tell.

Sometimes, MSHA vacates the citation, comes back later and issues another for exactly the same condition, applying the same standard based on the new interpretation that the operator successfully challenged. How can this be? Well, that’s fair notice.

The agency claims that, because it cited the operator previously, the operator was on notice that the agency would consider it a violation when the same condition was observed again. You can think of this as getting a “free pass” the first time around because you didn’t know what the rule was.

The argument is because you now know, you will be held responsible for following it going forward. To make matters worse, MSHA may claim that the recent notice means you are now highly negligent because you continued to violate the new requirement.

Where’s the fairness in that, you ask? You still disagree that the standard can be interpreted in that way. Yes, indeed. That is why the argument against the interpretation should almost never rest solely on a contention that the operator did not have fair notice.

Instead, the operator may want to argue that the standard simply cannot be read that way. In other words, the agency’s new interpretation is not a reasonable reading of the standard, and the only way the new requirement can be properly imposed is if the agency issues a new rule through notice and comment rulemaking.

In sum, sometimes when MSHA vacates a citation based on fair notice, enforcement personnel seem to abandon that improper reading of the standard and all is well. Other times, it is just the first chapter, and the operator will have to fight a battle again with a new citation. The bottom line is to be prepared if MSHA vacates a citation based on fair notice.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.

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