INTERPRETATION AND GUIDELINES ON ENFORCEMENT OF THE 1977 ACT
Section 3 .... Definitions
I.3-1 Definitions of "Operator" and
Section 3(d) of the Act expands the definition of "operator" to include independent contractors. Regulations governing independent contractors are found in Part 45 of Title 30 CFR. MSHA policy regarding independent contractors is set forth in this Manual in Volume III, Parts 45 and 50.
Section 3(h)(1) of the Act defines the term "mine" and includes related milling operations within that definition. Mine development, rehabilitation activities, and exploration work at an established mine are within the Act's scope. All types of mining, including placer, dredge, and hydraulic operations must be inspected. Government owned or operated mines and mills, whether federal, state, county, or other, are included within the jurisdiction of the Act. All such operations located anywhere in the United States, as well as in any of its territories, protectorates, or commonwealths, must be inspected.
I.3-2 Jurisdiction Over Mine Roads
Section 3(h)(1)(B) of the Act defines MSHA's authority to assume jurisdiction of mine roads which pass through federal land administered by agencies that do not have responsibility for health and safety on those roads. The criteria or factors listed below will be used for determining jurisdiction. The presence of any of these factors should each weigh in favor of inclusion of the road under MSHA jurisdiction.
- The road is owned by the mine operator;
- The road is maintained by the operator;
- The operator has the legal right to bring the road into
compliance with MSHA regulations;
- The road is used exclusively to provide access to the
mine, or to other mines of the operator;
- The road provides an exclusive or a major means of
access for mine vehicles; or
- The road was built by or for (by contractor) the mine operator.
The United States District Court for the District of Columbia ruled in 1975 in Alumina Company of America v. Morton that the alumina refining process is milling. As such, it is subject to MSHA jurisdiction under Section 3(h)(1) of the Act.
I.3-4 Jurisdiction Over Coal Loading
Sections 3(h)(2) and 3(i) of the Act address coal loading facilities over which MSHA asserts jurisdiction. These facilities will be examined to determine the nature and purpose of the work that takes place there. If the facility prepares coal according to any specifications for benefit of either the operator or the consumer, MSHA will inspect the facility. MSHA will not inspect facilities where coal is prepared solely to facilitate loading and not to meet specifications or to render the coal for any particular use. Local OSHA authorities should be informed by MSHA district personnel of any determination to terminate jurisdiction over a loading facility.
I.3-5 Jurisdiction Over Coal Preparation
Section 3(i) of the Act addresses jurisdiction over private or custom preparation plants and other related surface coal facilities not directly associated with a single mine or group of mines.
Section 4 .... Mines Subject to the Act
I.4-1 MSHA/OSHA Interagency
MSHA and OSHA have entered into an agreement to delineate certain areas of inspection responsibility, to provide a procedure for determining general jurisdictional questions, and to provide for coordination between the two agencies in areas of mutual interest. MSHA has jurisdiction over operations whose purpose is to extract or to produce a mineral.
MSHA does not have jurisdiction where a mineral is extracted incidental to the primary purpose of the activity. Under this circumstance, a mineral may be processed and disposed of, and MSHA will not have jurisdiction since the company is not functioning for the purpose of producing a mineral. Operations not functioning for the purpose of producing a mineral include, but are not limited to, the following:
- key cuts in dam construction (not on mining property or
used in mining);
- public road and highway cuts;
- water diversion, etc.; and
- storage areas
- petroleum reserves
- high and low level radioactive waste.
I.4-2 Jurisdiction Over Refractory Mills
The MSHA/OSHA Interagency Agreement provides that OSHA shall have jurisdiction over "brick, clay pipe, and refractory plants" (Section B.6.b). In these operations, both milling and manufacturing occur. The effect of Section B.6.b. is to grant to OSHA jurisdiction over plants that include a manufacturing process resulting in a product such as bricks, clay pipe, insulators, or other finished forms of refractories.
I.4-3 Jurisdiction Over Borrow Pits
Section 6(b)(7) in the MSHA/OSHA Interagency Agreement states:
'Borrow Pits' are subject to OSHA jurisdiction except those borrow pits located on mine property or related to mining. (For example, a borrow pit used to build a road or construct a surface facility on mine property is subject to MSHA jurisdiction.) 'Borrow Pit' means an area of land where the overburden, consisting of unconsolidated rock, glacial debris, or other earth material overlying bedrock is extracted from the surface. Extraction occurs on a one-time basis or intermittently as need occurs, for use as fill materials by the extracting party in the form in which it is extracted. No milling is involved, except for the use of a scalping screen to remove large rocks, wood and trash. The material is used by the extracting party more for its bulk than its intrinsic qualities on land which is relatively near the borrow pit.Thus, if earth is being extracted from a pit and is used as fill material in basically the same form as it is extracted, the operation is considered to be a "borrow pit." For example, if a landowner has a loader and uses bank run material to fill potholes in a road, low places in the yard, etc., and no milling or processing is involved, except for the use of a scalping screen, the operation is a borrow pit. The scalping screen can be either portable or stationary and is used to remove large rocks, wood, and trash. In addition, whether the scalping is located where the material is dug, or whether the user of the material from the pit is the owner of the pit or a purchaser of the material from the pit, does not change the character of the operation, as long as it meets the other criteria.
District managers should contact headquarters regarding any questionable operations before final determinations are made.
Section 103 .... Inspections, Investigations and Recordkeeping
I.103-1 Assaulting, Intimidating or Impeding
Section 111 of Title 18 of the United States Code makes it a federal crime to forcibly assault, resist, oppose, impede, intimidate or interfere with any person designated in Section 1114 of Title 18 while such person is engaged in, or on account of, the performance of his/her official duties. It is a crime to assault, intimidate or impede MSHA employees who are assigned to perform investigative, inspection, or law enforcement functions. Thus, any person who assaults, intimidates or impedes an MSHA inspector, while the inspector is engaged in, or on account of, the performance of his/her official duties, is subject to investigation and arrest by the FBI, prosecution by the U.S. Attorney in the federal courts, and to a fine and/or imprisonment.
MSHA policy requires the inspector to leave the scene where a confrontation appears to be developing into a situation where an apparent violation of Section 1114 or 111 is about to occur. In order to avoid a confrontation, the inspector should inform the person(s) that an attack on an MSHA inspector is a federal crime, and that the person(s) may be subject to investigation and arrest by the FBI. If an inspector(s) believes that he/she may be subject to physical harm or assault, the inspector should leave the property immediately and promptly notify his/her supervisor.
If an inspector encounters harassment or delays during a mine inspection, the inspector should attempt to complete the inspection without further provoking the operator. Afterwards, the inspector's supervisor should be contacted.
In the event of an assault, intimidation, harassment, or the impeding of an inspection, the supervisor is responsible for collecting all the facts, reducing them to writing, and contacting the district or assistant district manager. Where the assistant district manager is contacted, the assistant district manager must then immediately contact the district manager. The district manager will notify the Technical Compliance and Investigations Office (TCIO) for further instructions. If the inspection is not the result of an imminent danger complaint, no inspection personnel should return to the mine without approval from headquarters. If it is an imminent danger complaint, an inspector and a supervisor should again attempt to conduct the inspection. No less than two inspection personnel should be sent to the mine property at this time.
I.103-2 Company Release Forms
An inspector shall not sign a responsibility release form when entering a mine to perform his duties. An inspector may sign a check-in and check-out book located at the mine, provided that it does not involve release of liability. Denial of "right of entry" for not signing a release shall be reported in accordance with Section 108 of the Act.
I.103-3 Performance of Work Other Than Inspections and
Other than providing technical or safety and health educational assistance, the inspector shall not assist any mine employee or official in the performance of work. An inspector's work at a mine shall include health and safety discussions related to the inspection.
I.103-4 Respirable Dust and Noise Sampling
Each underground coal mine operator develops a respirable dust control plan for maintaining compliance with the 2.0 milligram or lower standard. MSHA reviews and tests the operator's respirable dust control plan by taking samples in accordance with MSHA's Health Inspection Procedures Handbook. Once the plan is approved, inspectors measure the engineering parameters during each inspection to assure that all of the plan's elements are followed. If the plan is not being followed, the appropriate citation/order is issued. Respirable coal mine dust samples are collected during the four annual coal mine underground inspections for each active sampling entity.
Respirable coal mine dust samples are collected at surface mines in accordance with the Health Inspection Procedures Handbook. These samples will be collected during the two annual surface mine/facilities inspections for each active sampling entity.
Noise samples will be collected at locations in accordance with the Health Inspection Procedures Handbook. Noise samples will be collected one time per year on each active coal mine (surface/facilities and underground).
103(a) Mandated Inspections
Section 103(a) of the Act requires a minimum of four inspections a year for underground mines and a minimum of two inspections a year for surface mines. Consistent with Section 103(a) of the Act, the procedures for conducting the inspection of an underground mine in its entirety at least four times a year and surface mines and facilities at least twice a year are set forth in the respective General Inspection Procedures Handbooks for Coal and Metal and Nonmetal.
MSHA's interpretation is that this requirement applies to full-time producing mines operating for the entire fiscal year period. For mines which started operating in the middle of the fiscal year, fewer inspections are required. MSHA's policy for these mines is based on an average of one inspection every quarter for underground mines and an average of one inspection every six months for surface operations. Underground mines in an inspectable status for 45 days or more in a quarter require an inspection, and surface operations in an inspectable status for 90 days or more in a six month period require an inspection.
For intermittent and nonproducing mines, MSHA's policy for metal and nonmetal mines requires two inspections a year for underground operations and one inspection a year for surface operations. This same policy applies for intermittent coal mines.
If a coal mine has an ongoing re-opening inspection under 303(x) of the Mine Act, the number of days from the start date to the end date of that inspection will be excluded from the calculation of the time available for a regular inspection.
If a mine has received an Attempted Inspection (Denial of Entry) event during the inspection period, no inspection is required for that period.
If the status of a mine changes to abandoned, abandoned sealed, or temporarily idle before the end of the inspection period and remains in one of those statuses, no inspection is required. Inspection requirements for previous inspection periods remain in effect.
Authority to Inspect - Authorization for Representatives
Inspections and investigations under the Federal Mine Safety and Health Act of 1977 shall be conducted only by persons who have been authorized by the Secretary to conduct such inspections or investigations. The inspector's authorization shall be available during inspections and investigations.
103(a)Authority to Conduct Special Investigations - SI
Section 103(a) of the Act authorizes MSHA to conduct special investigations as an integral part of the Agency's enforcement program. The Technical Compliance and Investigation Divisions (TCID) are responsible for overall administration and management of the special investigations program. In order to promote the consistent application and management of the program, TCID will develop statistical and management information based on special investigations activities in the field. This includes evaluating the effectiveness of each district's special investigation program, monitoring district compliance with national policies and procedures, and providing periodic updates on the status of cases. As part of the Agency's accountability program, accountability reviews of the special investigations program will be conducted by the national office on a recurring basis. TCID has responsibility for the following sections of the Act:
- Section 105 complaints of discrimination filed by miners and other protected persons;
- Section 108 injunctive actions; and
- Section 110 civil and criminal violations of the Mine Act and/or mandatory safety and health standards.
The special investigations program does not have responsibility for nor does it conduct internal investigations. Any allegations of employee misconduct, including advance notification of inspections, should be referred to the appropriate Administrator.
Investigations of discrimination complaints and possible knowing and/or willful violations shall be conducted only by persons who have been authorized by the Secretary to conduct special investigations. Special investigator (SI) credentials will be issued by the Assistant Secretary for MSHA to those persons who have completed the specified investigator training. SI credentials will be carried at all times when conducting special investigations. Improper use or failure to safeguard SI credentials may result in disciplinary action. Only MSHA approved SI credentials may be used in the performance of any special investigation and may only be used by the authorized representative to whom the SI credentials have been issued.
If an AR discovers that an operator, contractor, or any other person has given advance notice of an impending inspection, the AR shall issue a citation under Section 104(a) of the Act alleging a violation of Section 103(a) of the Act. As usual, inspector observations and notes (including the identity of who gave the advance notice, how the notice was provided, and any physical conditions of the mine or practices that may have been recently changed) will help support a citation.
Consistent with established agency policy, advance notice includes subtle forms of communication (such as coded references, like “company is here,” or “visitors are on site”) intended to disguise an announcement of MSHA’s presence at a mine. Communications warning of pending inspection activity after a multi-day inspection has begun also constitute advance notice. All persons need to be aware of their legal obligations under the Mine Act. An individual or an operator does not have to be warned explicitly against providing advance notice for them to be found in violation of the Mine Act’s advance notice provisions.
Advance notice has an inherent tendency to interfere with an inspection. Thus, to establish an advance notice violation, an AR need not demonstrate that mine conditions or practices were altered based on advance notice.
An implied exception to the prohibition against advance notice exists in Section 103(g)(1) of the Act. When a miner or miners’ representative reports what is believed to be an imminent danger, the operator or agent must be notified "forthwith." Such notifications will usually have the effect of indirectly giving notice of an inspection. Likewise, the establishment of a date and time for abatement of a violation may provide indication of an impending inspection activity. This too is an implied exception to the prohibition against advance notice.
When MSHA personnel are engaged in inspection activities, it may be necessary to make arrangements with personnel at the mine when certain preparations are essential to carry out enforcement activities. In such situations, approval should be obtained from the inspector's supervisor before advance notice is given. Most important, unless the arrangement or notice is essential to carry out an enforcement activity; it is considered “advance notice” of inspection activity and prohibited by Section 103(a) of the Act. Examples of on-site activities requiring advance notice to mine operators and/or miners’ representatives are described below:
- When an inspector intends to include a routine second- or third-shift inspection or conduct personal health sampling, it may be necessary to designate a time and meeting place so representatives of the operator and miners can be given an opportunity to accompany the inspector and/or to enable miners to participate in sampling activities. Pre-selected meeting sites should not reveal the specific areas to be inspected. However, it is recognized that the normal progression of an inspection may, by process of elimination, reveal remaining areas to be inspected.
- When preparations are needed during an inspection for an examination of a mine’s power system, the inspector may arrange for the inspection of the electrical system during scheduled down time.
- If it is necessary to interrupt an inspection for any cause, the inspector may inform the operator and, if applicable, the miners’ representative, that the inspection is interrupted and will be resumed at the discretion of the inspector.
- Advance notice may be given when a coal mine operator is afforded an opportunity to adjust respirable dust control measures and establish conditions that will prevail during a respirable dust technical inspection, which has the primary purpose of determining the adequacy of the operator's dust control plan.
The Act does not prohibit advance notice of investigative activities. However, notice of investigative activities shall only be given when such notice promotes an important investigative goal. Clearance and direction must be obtained from the investigator’s and/or the inspector's supervisor before notice is given for investigative activities. Investigative activities include:
- Obtaining information for health and safety research;
- Technical assistance, including field certifications;
- Obtaining information for petitions for modification;
- Section 110 investigations;
- Criminal investigations;
- Education and training;
- Investigation of miner discrimination complaints;
- Accident investigations;
- Preparation for health sampling activities during an ongoing inspection;
- Demonstrations of research or prototype equipment; and
- Investigations of hazard complaints.
The advance notice prohibition also applies to MSHA personnel involved in inspection activities. As provided in the Mine Act, no advance notice shall be provided to any person concerning inspection activities undertaken to determine whether an imminent danger exists or to determine whether there is compliance with a mandatory health or safety standard or with any citation, order or decision issued pursuant to the Mine Act.