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Program Policy Manual

VOLUME I

INTERPRETATION AND GUIDELINES ON ENFORCEMENT OF THE 1977 ACT
May 16, 1996


103(a) Denials of Entry
Any authorized representative of the Secretary shall have the right of entry to, upon or through any mine for the purpose of making any inspection or investigation under the provisions of the Act. In the event an inspector is refused entry to a mine, or is threatened or harassed while making an inspection, the inspector must be familiar with the terms, definitions and actions to be taken, as described below.

Denials of entry can be either: (a) direct denials involving confrontation; or (b) indirect denials involving interference, delay and/or harassment.

Upon being denied right of entry, the inspector should first attempt to determine the reason for the denial. Was it direct or indirect? Specific actions must be taken for the different types of denials:
  1. Direct: Direct denials are those in which an operator or the operator's agent informs an inspector that an inspection of the mine will not be permitted.

    The following situations are the most common reasons for direct denial: (1) the operator refuses to permit inspection based on the belief either that MSHA does not have the right or authority to inspect because the mine is not subject to the Act, or that a search warrant is required; (2) the operator chooses to be selective by denying entry to a specific inspector. The latter is to be considered a denial of entry to MSHA as a whole.

    1. Denials Not Involving MSHA's Statutory Authority
      When the operator informs an inspector that an inspection of the mine will not be permitted, and no challenge is made concerning MSHA jurisdiction, the following actions should be taken if the inspector can safely do so:

      1. The inspector should explain to the operator the mandatory inspection requirements in Section 103(a) of the Act and that a citation will be issued and a penalty assessed for the denial of entry.

      2. If, after explaining MSHA's position to the operator, the inspector is still denied entry to the mine, the inspector shall issue a 104(a) citation citing a violation of Section 103(a) and establishing a reasonable time for abatement. Suggested abatement time is 30 minutes unless circumstances necessitate other limits.

      3. If, upon conclusion of the abatement period, the operator withdraws the denial and permits the inspection, the inspector should terminate the citation. However, if the operator still denies entry to the mine, the inspector should issue an order of withdrawal (define the area affected by the order as "no area affected") and notify the immediate MSHA supervisor so that an injunctive action may be considered.

    2. Denials Involving MSHA's Statutory Authority
      When the operator refuses to permit an inspection upon the belief that MSHA does not have the right or authority to inspect the mine, the inspector should explain to the operator the mandatory inspection requirements under Section 103(a) of the Act, and that there will be a citation and penalty assessed for the denial of entry. The inspector should first carefully note the operator's response as to why the operator believes that the mine is not subject to the Act, and then proceed as listed in a. above, "Denials Not Involving MSHA's Statutory Authority."

  2. Indirect: Indirect denials are those in which an operator or his agent does not directly refuse right of entry, but takes roundabout action to prevent inspection of the mine by interference, delays, or harassment. There must be a clear indication of intent and proof of indirectly denying entry. For example, access to the mine is blocked by a locked gate or other means of blockage. However, a locked gate or other means of blockage, in and of itself, does not necessarily constitute a denial of entry. Mine management may have only closed the mine for the day and blocked the mine access road to prevent vandalism. However, when a locked gate is accompanied by continued production and deliberate avoidance of communication with the inspector, the mine operator is denying MSHA right of entry to the mine property. Other examples are listed below. The list is not meant to be all- inclusive, and reference is made only to some of the situations which may constitute an indirect denial.

    1. Refusal to furnish available transportation on mine property when it is difficult or impossible to inspect on foot;

    2. Refusal to provide information regarding, or to accompany inspectors into, areas considered unsafe to travel without specific knowledge of the subject mine (e.g., knowledge of on-shift blasting schedules in metal mines);

    3. Withdrawing mine personnel when the inspector arrives;

    4. Removing power from the mine or the mine ventilation system when an inspector arrives (before or after production);

    5. Denying access to equipment or the immediate work area;

    6. Deliberately withholding vital information (ownership, responsible person, name of operator, disposition of product, ownership of equipment, etc.); and

    7. Denying entry for failure to have a search warrant. The Supreme Court, in the 1981 case of Donovan v. Dewey and Waukesha Lime and Stone Company, upheld the authority of MSHA to conduct warrantless inspections.


When the mine has an I.D. number and the operator is known and present and does not verbally refuse right of entry, but takes indirect action to prevent inspection of the mine, the inspector should explain the particular actions which are considered to be a denial of entry, and then should proceed in accordance with the above instructions pertaining to Section 103(a) of the Act, Denials of Entry.

When a mine has an I.D. number and the operator is known but not present, and access to the mine is indirectly denied, the inspector should return to the office, notify his/her immediate supervisor, issue a 104(a) citation for a violation of Section 103(a), and mail the citation to the operator by certified mail, return receipt requested. The inspector shall return to the mine site at the conclusion of the abatement period and terminate the citation if an inspection is allowed. If entry is still denied, the inspector shall issue a 104(b) order of withdrawal and notify the MSHA supervisor of the action taken so that injunctive action may be considered.

When a mine does not have an I.D. number and the operator is unknown, and access to the mine is indirectly denied, the inspector should return to the office, notify the supervisor, and assist in identifying the mine property and property owner in order to determine jurisdiction. When the property is identified and jurisdiction has been established, the inspector and the supervisor should meet with the operator or agent and request access.

The operator or the agent must be informed that he has been identified as the operator, owner, lessee, etc., and that MSHA has evidence that the operation is under the jurisdiction of the Act. The operator must be given a description of the circumstances which prevented access. The inspector should then explain the statutory right of entry and again attempt to gain entry to the mine property. Should a denial of entry again occur, the inspector and the supervisor should take appropriate action depending upon the nature of the denial, as previously discussed.

103(f) Rights of Participation in Inspection Activity
The intent of Congress was to provide an opportunity for both the representative(s) of the miners and the representative(s) of the operator to accompany inspectors during the physical inspection of a mine for the purpose of aiding enforcement and to participate in the pre-inspection and post-inspection conferences held at the mine. Accordingly, every reasonable effort is to be made to provide both parties with an opportunity to participate in the physical inspection of the mine and in all pre-inspection and post-inspection conferences. Additional information on the scope of miner's representatives' participation in inspections under Section 103(f) of the Act is published in an Interpretive Bulletin printed in the Federal Register on April 25, 1978 in Vol. 43, No. 80.

Miners' representatives have the right to accompany inspectors on any type of 103(a) inspection involving direct enforcement activities such as: "regular inspections"; spot inspections; inspections conducted at the request of miners or their representatives; inspections of especially hazardous mines; and, inspections made in conjunction with accident investigations.

To carry out an orderly and thorough inspection, the inspector should not allow unusual conditions, such as unavailability of a miner representative or a representative of an operator, to delay the start of an inspection. An inspector may limit the number of participants in the inspection party and may require individuals with conflicting claims to reconcile their differences among themselves and to select a representative. The inspector shall determine the scope and number of participants which is reasonable during an inspection.

Representatives authorized by the miners who wish to exercise their rights under Section 103(f) of the Act are not required to meet the requirements of 30 CFR Part 40, Representative of Miners. If there is no authorized representative of miners, or if the inspector is unable to determine who is the representative, the inspector shall consult with a reasonable number of miners concerning matters of safety and health at the mine. These miners should be selected at random and should represent the various phases of mining operations at the mine. The inspector may accept anyone designated by the operator as the operator's agent.

The review of citations and orders at the mine under 30 CFR 100.6(a) is covered under Section 103(f) of the Act. These reviews are an integral part of MSHA's mine inspections and constitute post-inspection conferences held at the mine.

Section 103(f) of the Mine Act provides for the participation of a representative of the miners in safety and health inspections of the mine. This section also requires that the miners' representative participating in pre- and post-inspection conferences at the mine be compensated for the period of participation. However, this sections limits the protection against loss of pay to one representative of miners who is "an employee of the operator." When multiple operators are present at the mine and the work or activities of one operator may affect the safety and health of the miners of the other operator(s), representatives of miners of more than one operator have the right to accompany an MSHA inspector under Section 103(f). One representative of the miners of each operator is entitled to compensation for the time spent accompanying the MSHA inspector during the inspection. The inspector shall determine the scope and number of participants that is reasonable. This is consistent with the purpose of Section 103(f), which encourages miner participation in inspections, and which provides that a representative of miners "...shall suffer no loss of pay during the period of his participation in the inspection..."

103(g) Referrals of Hazardous Condition Complaints
This MSHA policy covers referrals of hazardous condition complaints to other federal and state agencies. It is intended to ensure the confidentiality of the identity of miners who seek our assistance.

Other state and federal agencies exercise concurrent jurisdiction with MSHA in matters of safety and health at mines. In addition, these agencies regulate them for other purposes. It is in the public interest that we be aware of these agencies and their responsibilities and that we share information with them to assist in achieving statutory goals. Unless a referral would interfere with ongoing MSHA activities, a miner's complaint which raises issues which are also within the province of another state or federal agency should be referred to that agency.

In situations where we find it appropriate to refer a miner's complaint to another agency for their potential action, we need to ensure, to the extent possible, that the receiving agency has a policy treating the identity of complainants with the same confidentiality we provide. Therefore, the referring MSHA office should consult with the receiving agency to ensure that agency's willingness to protect the name and identity of the complainant, unless disclosure is necessary in the course of litigation. If the confidentiality of the complainant's identity cannot be ensured by the receiving agency, the referring MSHA office may either refer the matter with the identity stricken (with a note of explanation) or it should advise the complainant that he/she may wish to bring the matter directly to the attention of the other agency.

103(g) Special Complaint Inspections
See Part 43 in Volume III of this Manual.

103(i) Required Hazardous Spot Inspections
Section 103(i) of the Act defines the conditions in mines under which spot inspections at various time intervals are to be conducted. Such a spot inspection shall not constitute a part of any other category of inspection, and the inspection is to be directed specifically to the problems, hazards, or conditions under which the mine was classified as a Section 103(i) mine. However, this does not prevent another category of inspection or investigation from being conducted during the same visit to the mine.

103(j) Mine Accident and Rescue, Recovery and Preservation of
Evidence
In the event of a mine accident where rescue and recovery work is necessary, Section 103(j) of the Act grants the authorized representative broad authority to take whatever action, including the issuance of orders, that the representative deems appropriate to protect the life of any person. Where appropriate, the authorized representative(s) may supervise and direct the rescue and recovery activity.

Immediately upon arrival at the mine accident scene, or later as mine rescue operations develop, the authorized representative may determine that direct control, either entirely or partially, is necessary, particularly in situations where a less hazardous rescue procedure is desirable, instead of the procedure intended for use. Because of this broad authority, discretion and good judgement on the part of the authorized representative are imperative.

The term "accident" is defined in 30 CFR Part 50.2(h). Generally, the inspector will not utilize his/her authority under Section 103(j), but will instead utilize Section 103(k). Under Section 103(k) of the Act, the inspector can issue such orders as he/she deems appropriate to insure the safety of any person. In addition, under Section 103(k), the operator is required to obtain the authorized representative's approval of any plan to recover any person in a mine or to recover the mine, or in order to return affected areas of the mine to normal.

Notwithstanding the above, when, during rescue and recovery work, it is determined by the authorized representative that an order is appropriate to protect the life of any person, or that supervision and direction of rescue and recovery activities is appropriate, a Section 103(j) order shall be issued to the operator. When possible, the inspector should contact his/her district or sub district manager prior to issuing a 103(j) order of withdrawal.

It is not necessary or proper to issue a Section 103(j) order solely to preserve evidence, since the operator is required to preserve evidence not only under Section 103(j), but also under 30 CFR 50.12. In such a situation, the operator should be cited under 30 CFR Part 50.



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