It is MSHA's policy to implement Section 105(b)(1) of the Act against operators that fail to correct violations (cited pursuant to Section 104 of the Act) within the reasonable time permitted for such correction.  Therefore, where an operator has failed to correct a cited violation within the time permitted for abatement, MSHA district managers may invoke the additional penalty procedure available under this Section, after consultation with the appropriate Administrator.  However, it should be noted that the vast majority of cited violations are corrected within the time allowed for abatement.  In those circumstances, Section 105(b) procedures cannot be utilized, and an additional penalty under Section 110(b) will not be assessed. The following are examples of some of the situations where it may be appropriate to propose additional penalties pursuant to Section 105(b)(1):

1.   Where the imposition of a withdrawal order is ineffective to correct existing violations.  For example, where an operator that has abandoned a mine has been issued a citation for failure to seal (or properly seal) it, and the operator has permitted the abatement time to expire without making any effort to properly seal the mine.

2.   Operating in the face of an order.  Where an operator refuses to comply with a valid Section 104(b) order (i.e., an order issued for failure to abate a Section 104(a) citation within the specific time allowed for abatement), a penalty may be proposed.  Also, if the operator fails to comply with an order issued pursuant to Section 103(k), 104(d), 104(e), or 107(a), a penalty under Section 105(b)(1) may be proposed.

3.   Unabated violation of Title I of the Act where time permitted for correction should not be extended.  The district manager shall evaluate the situation and make a determination as to whether an action under Section 105(b)(1) should be initiated for the purpose of assessing a penalty under Section 110(b).

Mine operators will be given a "notice of intention" that MSHA is recommending that the Secretary propose additional penalties in accordance with Section 105(b)(1).  This notice will be issued only by a district manager and not by individual mine inspectors. The Administrator's Office shall be informed prior to the issuance of this notice to the mine operator.  The proposed penalty will begin to accrue from the day following receipt of this notice.   When MSHA receives notification of abatement from the operator, the inspector should endeavor to determine the date of abatement as reported by the operator.  If there is no evidence to dispute the operator's reported abatement date, that date should be the abatement date.

The date that the operator was notified by certified mail of its failure to correct the violation, the established date that the violation should have been corrected, the date the operator notifies MSHA of abatement, and the dates of any follow-up inspections, should be recorded in the district office.

If the violation is found to have continued for a period of more than 15 calendar days beyond the date that a letter of notice is sent, the Administrator's Office should be notified so that consideration may be given to the appropriateness of further enforcement proceedings.  However, nothing in these instructions precludes the district manager from implementing these procedures while concurrently requesting other enforcement action, such as injunctive relief.  Moreover, in appropriate cases, such concurrent action may be necessary to fully protect the health and safety of the miners.

  105(c) Investigation and Processing of Discrimination Complaints
105(c) Investigation and Processing of Discrimination Complaints | En español
Under the provisions of Section 105(c)(1) of the Federal Mine Safety and Health Act (Mine Act), miners, representatives of miners and applicants for employment are protected from retaliation for engaging in safety and/or health related activities, such as identifying hazards, asking for MSHA inspections, or refusing to engage in an unsafe act.  To encourage miners to exercise their rights under the Mine Act and maximize their involvement in monitoring safety and health conditions, MSHA vigorously investigates discrimination complaints.  Particular attention is given to those operators who have repeatedly discriminated against miners.  MSHA will seek more substantial civil penalties for discrimination violations as a deterrent to future instances of illegal discrimination.

Section 105(c)(2) provides that discrimination complaints are to be filed with the Secretary of Labor within 60 days of the alleged act of discrimination.  The investigation, required to be conducted by the Secretary, is to commence within 15 days of receipt of a complaint.  Discrimination complaints requesting temporary reinstatement will be investigated immediately.

Section 105(c)(3) provides that within 90 days of receipt of a complaint, the Secretary is to make a written determination as to whether a violation has occurred.

To meet these timeframes, MSHA policy is to complete the field investigation of a complaint of discrimination and submit a final report to TCIO within 45 days of the date of receipt of the complaint.

In order to comply with these timeframes and expedite the processing of discrimination complaints, all MSHA enforcement personnel shall be familiar with the provisions of Section 105(c) so they may receive complaints and handle them properly.  In most circumstances, a designated person (complaints processor) will be available in each district and field office to receive complaints and respond to questions concerning Section 105(c).  A signed document alleging discrimination must be received before an investigation of a discrimination complaint may begin.  (For further guidance, see Special Investigations Procedures Handbook, Chapter 2, Section B.1.)

105(d) Handling of Contests of Citations and Orders
Section 105(d) of the Act provides that a mine operator is to notify the Secretary if he or she intends to contest a citation, order, or proposed assessment, or to contest the reasonableness of the length of abatement time.  The Secretary, in turn, is then required to immediately advise the Commission of such notification.

Although not expressly provided by the Act, mine operators who wish to contest citations or orders within 30 days of issuance of such citations or orders should mail their notification of intent to contest directly to the Mine Safety and Health Review Commission, 601 New Jersey Avenue, N.W., Ste. 9500, Washington, D.C. 20001, 202-434-9900, email address is: info@fmshrc.gov (see 29 CFR 2700.18(b)), and mail a copy to the Office of the Solicitor, Division of Mine Safety and Health (MSH), 22nd floor, 1100 Wilson Boulevard, Arlington, Virginia 22209-3939.  In addition, a copy should be given to all known representatives of miners at the affected mine.

When a district office receives an immediate contest of citations/orders (within 30 days of issuance) which has not been mailed directly to the Commission, the district manager should immediately contact the MSH Counsel for Trial Litigation in the Office of the Solicitor, telephone (202) 693-9333.  A copy of the contest should be retained in the district office for future reference, and the original mailed to the MSH Counsel via express mail or special delivery.  The MSH Counsel will advise the Commission of the mine operator's intention to contest, as required by Section 105(d) of the Act.  In addition, the operator should be notified that future immediate contests of citations/orders are more properly filed with the Mine Safety and Health Review Commission.

The procedural rules of the Mine Safety and Health Review Commission concerning applications for review of citations and orders are published in 29 CFR 2700.  Mine operators, miners, or miners' representatives requesting information on general rules applicable to proceedings before the Commission and its Administrative Law Judges should be referred to the Code of Federal Regulations or to the Office of the Solicitor.

Section 107 .... Imminent Danger

107(a) Imminent Danger
"Imminent danger" is defined in the Act as "the existence of any condition or practice in a mine which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated."  The two important elements of an imminent danger are: 

1. the existence of a condition or practice which could reasonably be expected to cause death or serious physical harm; and

2. the imminence of the danger is such that it may cause death or physical harm before it can be abated.

In the absence of an imminent danger, an inspector cannot use Section 107(a) orders for "control purposes." The Act and applicable legal decisions spell out the need for an imminent danger to justify the issuance of a Section 107(a) order.

107(d) and (e) Vacating Imminent Danger Orders
See Section 104 of this Manual, Vacating Citations and Orders.

Section 108 .... Injunctions

108 Injunctive Actions
Under the provisions of Section 108 of the Mine Act, the Secretary of Labor is authorized to initiate civil action (in United Stated District Court) for relief, including permanent and temporary injunctions, restraining orders, or any other appropriate order, for the following violations:

 1.  violating or refusing to comply with an order or decision issued under the Mine Act;

 2.  interfering with, hindering, or delaying the carrying out of provisions of the Mine Act;

 3.  denying entry onto a mine property;

 4.  refusing permission to conduct an inspection of a mine, or investigation of an accident or occupational disease occurring on a mine property;

 5.  refusing to provide information or reports requested in carrying out the provisions of the Mine Act; or

 6.  refusing to permit access to the mine property for the purpose of copying records determined to be necessary in carrying out the provisions of the Mine Act.