| U.S. Department of
Labor |
Mine Safety and Health Administration 201 12th Street South, Suite 401 Arlington, VA 22202-5450 |  |
| EFFECTIVE DATE: March 25, 2011 | EXPIRATION DATE: 03/31/2013 (Reissue of I09-V-08) |
PROCEDURE INSTRUCTION LETTER NO. I11-V-5
FROM: KEVIN G. STRICKLIN
Administrator for
Coal Mine Safety and Health
NEAL H. MERRIFIELD 
Administrator for
Metal and Nonmetal Mine Safety and Health
SUBJECT: Guidance on Issuance of Orders Under Sections 103(j) and (k)
of the Mine Act
Scope
This Procedure Instruction Letter (PIL) is intended for Mine Safety and Health Administration District Managers and Mine Safety and Health Administration (MSHA) personnel who respond in the case of a mine emergency.
Purpose
The purpose of this PIL is to establish a uniform policy for the issuance of section 103(j) and 103(k) orders (orders issued under 30 U.S.C. 813(j) or (k) of the Federal Mine Safety and Health Act of 1977 (Mine Act)) in mine emergencies where an MSHA Authorized Representative is not present at the mine site. This revision augments instructions currently found in the Accident/Illness Investigation Procedures Handbook, No. PH00-I-5, and the Citation and Order Writing Handbook for Coal Mines and Metal/Nonmetal Mines, PH08-I-1.
Procedure Instructions
Upon learning of a mine emergency, unless MSHA is already present, enforcement personnel should verbally issue a section 103(j) order to the operator, including initial instructions, as soon as possible. The order, including any instructions, should be reduced to writing and transmitted to the operator as soon as practicable.
The order should be written so as to protect all persons engaged in the rescue and recovery operation, as well as any other persons on-site.
It should also require the operator to prevent the destruction of evidence at the accident site. In the event that a mine accident is not a mine emergency (i.e. there are no ongoing rescue and recovery efforts), MSHA may issue a 103(j) order prohibiting activity at the accident site so as to prevent the destruction of evidence which would assist in investigating the cause or causes of the accident.
Upon MSHA's arrival on-site and following assessment of conditions, MSHA may modify the section 103(j) order, including all instructions, to reflect that MSHA is now proceeding under the authority of section 103(k) of the Mine Act. MSHA should inform parties on-site that any activities that are rescue or recovery related will be permitted through subsequent modifications of the section 103(k) order. The section 103(k) order is intended to protect all persons involved in the emergency operation or accident investigation. As such, all parties on-site are subject to the section 103(k) order and any subsequent modifications. Each proposed action should be reviewed by the designated MSHA person on-site before the section 103(k) order is modified and before the action is commenced. MSHA has the authority to issue a section 103(k) order unilaterally. However, every effort should be made to gain consensus among the parties involved to obtain the safest and most effective outcome.
Background
MSHA has historically made greater use of orders under section 103(k) rather than section 103(j). A section 103(j) order is appropriate in certain circumstances, however. In the event of a mine emergency (which for present purposes includes an accident where ongoing rescue and recovery work is necessary), MSHA is authorized under section 103(j) to take any action deemed appropriate to protect lives. The mine operator is also required to take measures to prevent destruction of evidence that could assist accident investigations, regardless of whether ongoing rescue and recovery work is necessary. MSHA has the authority to issue discrete section 103(j) orders directing operators to take specific actions and it may do so without taking complete control over rescue and recovery operations.
Section 103(j) provides:
- In the event of any accident occurring in any coal or other mine, the operator shall notify the Secretary thereof and shall take appropriate measures to prevent the destruction of any evidence which would assist in investigating the cause or causes thereof. For purposes of the preceding sentence, the notification required shall be provided by the operator within 15 minutes of the time at which the operator realizes that the death of an individual at the mine, or an injury or entrapment of an individual at the mine which has a reasonable potential to cause death, has occurred. In the event of any accident occurring in a coal or other mine, where rescue and recovery work is necessary, the Secretary or an authorized representative of the Secretary shall take whatever action he deems appropriate to protect the life of any person, and he may, if he deems it appropriate, supervise and direct the rescue and recovery activities in such mine.
Section 103(k) provides:
- In the event of any accident occurring in a coal or other mine, an authorized representative of the Secretary, when present, may issue such orders as he deems appropriate to insure the safety of any person in the coal or other mine, and the operator of such mine shall obtain the approval of such representative, in consultation with appropriate State representatives, when feasible, of any plan to recover any person in such mine or to recover the coal or other mine or return affected areas of such mine to normal.
Authority
Sections 103(j) and 103(k) of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C.§ 801 et seq. at §§ 813(j) and 813(k).
Filing Instructions
This instruction letter should be filed behind the tab marked "Procedure Instruction Letters" in the binder for Program Policy Handbooks and Procedure Instruction Letters.
Internet Availability
This procedure instruction letter may be viewed on the World Wide Web by accessing the MSHA home page (http://www.msha.gov) and choosing "Compliance Info" and "Procedure Instruction Letters."
Issuing Office and Contact Person
Coal Mine Safety and Health
Terry L. Bentley, Accident Investigations Program
(202) 693-9521
E-mail: Bentley.Terry@dol.gov
Metal and Nonmetal Mine Safety and Health, Safety Division
Michael Hancher, Accident Investigations Program Manager
(202) 693-9600
E-mail: Hancher.Michael@dol.gov
Distribution
Coal Mine and MNM Safety & Health Enforcement Personnel