INTERPRETATION AND GUIDELINES ON ENFORCEMENT OF THE 1977 ACT
May 16, 1996
Section 105 .... Procedures for Enforcement
105(b) Additional Penalties for Failure to Abate
Violations Within Permitted Time
Section 110(b) of the Federal Mine Safety and Health Act of 1977 states:
"Any operator who fails to correct a
violation for which a citation has been
issued under Section 104(a) within
permitted for its correction may be assessed
a civil penalty of not more than $1,000 for
each day during which such failure or
- "If the Secretary has reason to believe that an operator has failed to correct a violation for which a citation has been issued within the period permitted for its correction, the Secretary shall notify the operator by certified mail of such failure and of the penalty proposed to be assessed underSection
110(b) by reason of such failure ..."
"In determining whether to propose a penalty to be assessed under Section 110(b), the Secretary shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and the demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of a violation."
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):
Section 105(b)(1)(B) of the Act specifies that in determining whether to propose the assessment of a penalty under Section 110(b), the Secretary shall consider six criteria. These are the same criteria used in the assessment process under Section 110(a). Therefore, the district manager must consider these criteria before recommending this action, and he must submit his findings to the Administrator.
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
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: email@example.com (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.Contests of proposed assessments are accomplished by following the procedures set forth in 30 CFR 100.7.
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:
- the existence of a condition or practice which could reasonably be expected to cause death or serious physical harm; and
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.
Section 108 .... Injunctions
108 Injunctive Actions 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.
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.
When any of these violations occur, appropriate enforcement action as prescribed in the General Inspection Procedures Handbook and in the Special Investigations Procedures Handbook shall be followed to cause compliance. If compliance does not occur after enforcement action, the district manager or their designee will notify TCIO immediately. This notification will contain all of the available facts pertaining to the violation.
TCIO will coordinate and facilitate as necessary the notification of the appropriate Regional Solicitor's Office to seek advice in proceeding with injunctive action. Each violation will be evaluated on the sufficiency of the available facts and the nature of the offense.If injunctive action is sought, instructions will be provided by the Regional Solicitor's Office and the U.S. Attorney on securing injunctive action. Once injunctive relief has been granted by the Federal District Court, provisions of the court order will be followed as stated together with instructions from the U.S. Attorney and the Regional Solicitor.
Section 110 .... Penalties
110(c) Enforcement Problems or Hazardous Conditions Identified
During Special Investigations
The Agency's special investigations workforce consists primarily of persons who are Authorized Representatives (AR) of the Secretary of Labor. If a hazardous condition, such as an imminent danger, is observed by a special investigator while on mine property, the special investigator is to initiate appropriate enforcement action. If the investigator is not an AR, the supervisory special investigator and the appropriate field office supervisor are to be contacted immediately and informed of the condition.
Information indicating an ongoing hazardous condition or enforcement problem may also come to light while interviewing witnesses. In such instance, the special investigator is to promptly notify the supervisory special investigator and the appropriate field office supervisor. As an integral part of the enforcement program within each district, the supervisory special investigator is to ensure that the district manager is promptly notified. A determination can then be made regarding the need for further enforcement action.
Likewise, if a review of a special investigation case file indicates that an ongoing enforcement problem may exist at a mine, the supervisory special investigator is to promptly bring the matter to the attention of the district manager.
Special investigation case files are also reviewed at headquarters by the Technical Compliance and Investigation Office (TCIO). If an ongoing enforcement problem is identified during the review of a case file, the matter should promptly be brought to the attention of the Assistant Director for TCIO. The Assistant Director will determine whether to refer the matter to the district manager, and to the Safety Division or Health Division, if appropriate.
In all of the above situations, required notification and response will be documented by a memorandum to the appropriate Agency official, with a copy to the investigation case file.
On rare occasions, it is possible for knowledge of ongoing hazardous conditions to be first encountered after the case is referred to the Department of Justice U.S. Attorney's Office.
When this happens, the time, manner, and extent of disclosure must be approved by the U.S. Attorney's Office assigned to the case.
110(c) and (d) Investigations of Possible Knowing/Willful Violations a. a mine accident;
The provisions of Sections 110(c) and 110(d) of the Mine Act are among the most stringent levels of enforcement action available to MSHA to ensure compliance with the Mine Act and related standards. Under these provisions, MSHA is authorized to propose the assessment of a civil penalty against a director, officer, or agent of a corporate operator who knowingly orders, authorizes, or carries out a violation of a mandatory safety or health standard, or to pursue criminal proceedings against an operator or a corporate director, officer, or agent who willfully violates a mandatory safety or health standard. MSHA conducts investigations under Sections 110(c) and 110(d) to establish the facts and circumstances surrounding certain violations of the Mine Act or of mandatory safety or health standards in order to determine whether the violations were knowing or willful in nature. The investigation of a possible Section 110 violation of the Mine Act is initiated at the request of the District Manager, usually as a result of one of the following circumstances:
b. a complaint received, such as an allegation of a possible violation of Section 110(f) (false reporting), or 110(h) (equipment misrepresentation); or
c. reviewing citations/orders for possible knowing or willful violations.
a. a mine accident;
The following types of citations and orders will be reviewed for possible further action:
a. each 104(a) citation issued which contributed to the issuance of a 107(a) imminent danger order of withdrawal;
b. each 104(d) citation or order which is identified as being significant and substantial (S&S) and the Negligence has been marked "high" or "Reckless Disregard"; and
c. each citation issued for working in violation of an Order of Withdrawal.
Only a violation of a mandatory health or safety standard or order issued under the Mine Act shall be reviewed for possible further action. This includes violations of 30 CFR, Parts 46, 47, 48, 49, 56, 57, 58, 62, 70, 71, 72, 75, 77, and 90.
The district review of a possible knowing/willful violation will be expedited and conducted within 30 calendar days from the date of issuance of the citation or order. The review is the responsibility of the issuing inspector and his or her supervisor, the assistant district manager, and the supervisory special investigator. A determination will be made by the district manager, with the assistance of the supervisory special investigator, whether to initiate a special investigation or take no further action. Documentation will be maintained to support whatever action is taken.
Criminal investigations may also result from reports of alleged violations of Section 110(f) (false reporting) or Section 110(h) (equipment misrepresentation). This would include but not be limited to violations of 30 CFR, Parts 5 through 50.
The district manager is authorized to close Section 110 cases where the district manager determines, based on a thorough investigation, that a knowing or willful violation has not occurred and there is no merit in pursuing further action. The district manager will also be responsible for sending the notification letter that officially closes the investigation directly to the operator and/or contractor identifying the citation(s) and order(s) involved, and indicate that MSHA has decided not to pursue further action. A copy of the notification letter shall be sent to TCIO along with a memorandum briefly stating the reasons for the district’s determination.
The goal is to complete comprehensive investigations as expeditiously as possible. It is anticipated that the majority of investigative reports will be submitted to TCIO within 150 days from the date the subject citation or order was issued. In instances where the matter under investigation was identified without the issuance of a citation or order, i.e., falsification of records, the 150-day timeframe for case submission shall begin from the date that MSHA had actual notice of the subject incident. The 150-day timeframe applies to all Section 110 investigations. TCIO will monitor all special investigation cases to ensure compliance with the 150-day timeframe. When circumstances prevent the completion of the investigation within the 150-day timeframe, the maximum time for submission of the investigative report to TCIO is 365 days from the date of issuance of the citation or order or, if a citation is not issued, 365 days from the date when MSHA had actual notice of the subject incident. The 365-day timeframe allows for the timely assessment of 110(c) civil penalties and timely referral for criminal prosecution.
The district manager may, before submitting the investigative report to TCIO, offer the director, officer, or agent named in the investigative file an opportunity for a Part 100 safety and health conference (PPM Volume III, Part 100, “100.6 Safety and Health Conferences,” and SI Handbook Chapter 7, Section C.2.b.).
Cases in which TCIO recommends either a civil penalty or criminal pursuit are referred to SOL for legal review and analysis must be done within 190 days to SOL-MSH from the date of the underlying violation.
SOL will independently review each case submitted for legal sufficiency and prepare a response to TCIO. This review and any consultations, discussions, or requests for additional information will be targeted for completion within a 30-day timeframe from the date SOL receives the case from TCIO.On a case-by-case basis, review by the Department of Justice will also be sought in sensitive matters where there is agreement not to refer a matter for possible criminal prosecution.
When there is agreement that a 110(c) civil penalty will be pursued and the individual corporate agent has not yet been offered the opportunity for a safety and health conference pursuant to Part 100, TCIO will send a memorandum to the appropriate district manager requesting that a conference be offered to the named agent (PPM Volume III, Part 100, “100.6 Safety and Health Conferences” and SI Handbook Chapter 7, Section C.2.b.). After completion of the conference, or receipt of documentation regarding the agent's refusal or non-response regarding same, the district manager shall send a memorandum to TCIO outlining the conference results and recommendations.
110(c) Referral of 110(c) Civil Penalty Cases to the Office of Special Assessments
Investigative timeframes have been established to help ensure the timely assessment of civil penalties against corporate directors, officers, and agents. Normally, such assessments will be issued within 18 months from the date of issuance of the subject citation or order. However, if the 18 month timeframe is exceeded, TCIO will review the case and decide whether to refer it to the Office of Special Assessments for penalty proposal. In such cases, the referral memorandum to the Office of Special Assessments will be signed by the Administrator.
110(h) Use of Non-Approved Equipment
Compliance investigations conducted by the Quality Assurance Division on the Jabco Model JG107 Audio Alarm unit, Approval Nos. 9B-49-0 and 9B-49-1, revealed that the 8-track tape player approved for use in the alarm unit is being replaced by various types and models of 12-volt direct current tape players that are not approved for use in the formal approval. This situation is further complicated, since the original equipment manufacturer is no longer in business, and the 8-track tape player specified in the formal approval is no longer available for purchase. All JG107 Audio Alarm units equipped with a tape player other than the 8-track tape player specified in the formal approval must be removed from permissible service as they are no longer permissible. Compliance investigations also revealed that Model Jabco JG107 Audio Alarm units are in service bearing Approval No. 9B-49-2 which has never been issued. Therefore, all units bearing MSHA Approval No. 9B-49-2 must have the approval plates removed and be removed from permissible service.
To emphasize the importance of using only approved equipment in a mine, Section 110(h) of the Act provides penalties for the knowing distribution, sale, delivery, or introduction of equipment into mines that is represented as approved but is not in approved condition. Also, in accordance with 30 CFR Parts 57 and 75, it is the responsibility of the mine operator to ensure that the approved/certified equipment is maintained in a permissible condition. Failure to remove altered units and units with MSHA Approval No. 9B-49-2 from permissible service will result in appropriate enforcement action. All Jabco Model JG107 Audio Alarms bearing MSHA Approval Nos. 9B-49-0 and 9B-49-1 that exist and are maintained to the formally approved design
may remain in service as permissible signaling devices.
Section 111 .... Entitlement of Miners
Section 111 is the statutory remedy for compensation to miners when a mine or mine area has been idled or closed by MSHA order. Miners or miners' representatives having a claim under this section of the Act must file with the Federal Mine Safety and Health Review Commission.
Section 111 creates a statutory right protected under the provision of section 105(c). If a miner or representative of the miners believes that a discriminatory act, as described in section 105(c), has been committed by a mine operator or anyone in authority because compensation under section 111 has been sought, a discrimination complaint under the provisions of section 105(c) may be filed. Such complaint will be processed in accordance with the policies pertaining to section 105(c) and related instructions in the Special Investigations Procedures Handbook.
Section 203 .... Medical Examinations
203(a) Chest X-rays
Congress gave the Department of Health and Human Services (HHS) the responsibility for setting up and carrying out the chest x-ray program. Thus, MSHA Coal Mine Safety and Health enforcement of Section 203(a) of the Act and 42 CFR 37 will normally be in response to specific requests from HHS. However, if an MSHA coal inspector, during his or her normal work, concludes (after a thorough inquiry) that there is noncompliance with Section 203(a) or with 42 CFR 37, the inspector must issue a citation. Citations will specify the relevant section of the Act or of 42 CFR 37.