INTERPRETATION AND GUIDELINES
ON ENFORCEMENT OF
THE 1977 ACT
INTERPRETATION AND GUIDELINES
May 16, 1996
PART 41 .... NOTIFICATION OF LEGAL IDENTITY
III. 41-1 Assignment of Independent Contractor and
Mine Identification Numbers
These are general guidelines for the assignment of new identification numbers and will apply to the majority of operations. Individual circumstances may arise where district personnel will have to decide on a case-by-case basis whether operations are related or independent for the purpose of assigning identification numbers.
When assigning a new mine identification number, a check should be made to ensure that the number is being assigned to a new mine and not an existing mine that has only undergone a change of ownership, name, or status.
Preparation or milling plants that receive material from only one underground or surface mine, and are located on the same property as that mine, shall share the mine's identification number and shall not be assigned a separate number. Preparation or milling plants that share mine property with a surface or underground mine, but process material from other mines, are to be given separate identification numbers. Preparation or milling plants that are not located on the same property as a surface or underground mine are considered to be centrally located facilities and are to have separate identification numbers.
Each underground mine and each surface mine shall have separate identification numbers. However, a new mine identification number must not be assigned to a mine going from surface to underground mining, or vice versa.
For independent contractors: The last paragraph of Section 45.3 of this volume stipulates that "Each independent contractor who has an identification number uses it on all job sites." This means that each independent contractor is assigned only one identification number to be used on any and all job sites.
III. 41-2Portable Operations
When a mine operator has a portable plant which operates in several different locations, the mine identification number is to be assigned to the plant only and not to the pit. Mine operators will need to submit only one legal identification form for each portable plant. Quarterly employment information will be reported on one Form 7000-2, regardless of the number of pits the plant may operate during the quarter. For administrative purposes, the portable plant will be given one permanent mine name (for example, ABC Plant #1) even though it might be operating in different locations during the course of the year. The operator will use the home office address on the legal identification form. This will be the address for all MSHA-related correspondence.
Consistent with other surface mining entities, the portable plant will receive inspections in accordance with the statutory schedule. Such inspections are expected to occur at locations where the portable plant is functioning.
Metal and nonmetal operators of portable plants should be reminded that 30 CFR 56.1000 requires notification to MSHA when a move is made from one pit to another. Since a number of the portable plants may move from the jurisdiction of one MSHA field office, subdistrict or district to another, it is important that MSHA personnel keep the receiving office advised of the location of the plant.
PART 42 .... NATIONAL MINE HEALTH AND SAFETY ACADEMY
42.10 Tuition Fees
The Academy will charge tuition fees to all persons attending Academy courses except employees of Federal, State, or local governments and persons attending the Academy under a program supported through an MSHA state grant.
42.50 Charges for Room and Board
The Academy will charge room and board to all persons staying at the Academy except MSHA personnel, other personnel performing a direct service for MSHA, and persons attending the Academy under a program supported through an MSHA state grant.
Fees may be waived for government and other organizations with direct involvement in mine health and safety. MSHA will waive tuition fees and room and board charges for up to 10 days per calendar year for mine rescue team members participating in team training activities at the Academy. The waiver is available only for team training activities. Waivers are not available for events such as local contests or rule interpretation meetings attended by mine rescue teams. Requests for waiver of fees and/or room and board charges must be made in advance and in writing.
Requests for group waivers will be approved by the Director of Educational Policy and Development and should be addressed to:
- Director of Educational Policy and Development
Mine Safety and Health Administration
1100 Wilson Boulevard
Arlington, VA 22209-3939
National Mine Health and Safety Academy
1301 Airport Road
Beaver, WV 25813-9426
The fee schedule for lodging is recalculated each year and is based on MSHA's actual costs for housekeeping, maid services, laundry, security, recreation, utilities, maintenance, registration, and direct staff support. The current fee schedule may be obtained by calling (304) 256-3280.
Charges for guest accommodations will be determined based on the following:
- Guests of MSHA Temporary Residents
When the temporary resident's room is paid by the Agency, adult guests and children over 12 will be charged the difference between the single and double rate. Children 12 and under stay at no cost.
Guests of Non-MSHA Temporary Residents Temporary residents will be charged the double room rate when they share the room with an adult guest or child over 12 years. Children 12 years and under stay at no cost. All students wishing to reserve a separate dormitory room for a guest at the Academy must prepay the charge for the guest's first night.
Educational Policy and Development (EPD) gives first priority for use of all facilities at the Academy to mission-related, MSHA sponsored activities. The Academy will continue to permit other organizations who meet Agency guidelines to use the Academy meeting and residence facilities during times not reserved by priority clients. Every effort will be made to accommodate all parties. However, if an MSHA organization notifies the Academy of its desire to use meeting and residence facilities more than 60 days in advance, and that request conflicts with an existing non-MSHA sponsored group's reservation, EPD will require non-MSHA parties to relinquish meeting and residence space sufficient to accommodate MSHA's needs. When this occurs, outside accommodations will not be paid for by EPD.
In addition, the Academy will set aside a limited number of dormitory rooms on a continuous basis for exclusive use of MSHA personnel who are attending emergency meetings, or who are traveling to the Academy on other types of official business. If the number of rooms available is insufficient, MSHA personnel will be required to find outside accommodations. Outside accommodations will not be paid for by EPD. Unless otherwise notified, meeting facilities will remain available at the Academy.
PART 43 .... PROCEDURES FOR PROCESSING HAZARDOUS CONDITIONS
III. 43-1 Processing Hazardous Conditions Complaints
Section 103(g)(1) of the Mine Act stipulates procedures and requirements for a representative of the miners, or a miner, to request an immediate inspection of a mine if there are reason- able grounds to believe that a violation of a mandatory standard or an imminent danger exists in the mine. Under Section 103(g) (1), the notice must be in writing, signed by the representative of miners, or a miner, and a copy must be given to the operator by MSHA in a manner that withholds the identity of the person giving, or involved in, the notice. MSHA instructions and regulations, under 30 CFR Part 43, exist for responding to such notices received under Section 103(g)(1), or by code-a-phone messages. These instructions and regulations also address MSHA response to a notice of alleged violation or imminent danger given under Section 103(g)(2). These requests or notices have normally been investigated and handled in an expeditious manner.
A different situation exists when an inspector receives information about violations or hazards in a mine, and the information is given in an informal manner that does not meet the requirements of Sections 103(g)(1) or 103(g)(2) in that the notice is not in writing. In these situations, the inspector receiving the information must evaluate and determine a course of action, which in some cases may result in an immediate inspection, but in other cases may not.
Inspectors should be willing to listen to all interested parties alleging violations, imminent dangers or hazards. Otherwise, the trust and cooperation that are the foundation of an effective safety effort will not be maintained. Depending upon the circum- stances, the inspector may make an immediate inspection, or may incorporate the area or practices into his or her inspection schedule for attention at a later date. Likewise, the inspector may determine that the area in question has been inspected since the alleged occurrence and, consequently, the situation does not warrant further investigation. Any subsequent action by an inspector on information received outside the context of Section 103(g) should not be considered a 103(g) inspection; therefore, the procedures of Part 43 would not apply.
Information received about violations or hazardous conditions should be brought to the attention of the mine operator without disclosing the identity of the person(s) providing the information.
Furthermore, any written notification of an alleged violation or of an imminent danger received from a miner at a mine shall receive the same consideration and attention as that of a notification received from a representative of miners.
If a 103(g) complaint is received, and if it is determined that a special inspection is not warranted, a written notice of such determination shall be issued as soon as possible to the representative of the miner(s) or to the complainant.
If a special inspection is conducted, the MSHA inspector will notify the operator of the complaint pursuant to 30 CFR 43.4(c), but the inspector must not divulge to the operator the name of the complainant or the names of any individuals referred to in the complaint.
If the inspector finds that the alleged violation or danger exists, he or she shall issue the proper citation(s) or order(s).
However, if, before leaving the mine, the inspector finds that no violation(s) or imminent danger connected with the complaint exists, he/she shall verbally convey this finding both to appropriate company and union officials. In addition, upon completion of a 103(g)(1) inspection in which a negative finding of violation is made, the inspector shall provide written notification of that fact to the operator and to the representative of miners or to the miner, before the inspector leaves the mine property. This notification will be written in longhand on the appropriate MSHA form. Any violation observed that does not specifically relate to the complaint shall be so identified in the investigation report.
Where the representative of miners or the miner invokes the procedures in Part 43, but disagrees with the inspector's conclusion(s), including, for example, the inspector's failure to issue an "unwarrantable" citation or order, the review procedures in Section 43.7 may be utilized.
43.7 Informal Review
Where a written complaint under Section 103(g) of the Act has been submitted to MSHA, and the authorized representative refuses to issue a citation with respect to the alleged violation or imminent danger, the representative of miners or the miner may obtain review of the refusal in accordance with the procedures outlined in 30 CFR Section 43.7(b).
This informal review procedure also applies to complaints by representatives of miners or miners for failure on the part of the authorized representative to issue a 104(d) "unwarrantable" citation or order, even though a 104(a) citation or order was issued.
After receipt of the written request for review, the district manager will follow the procedures in 30 CFR 43.7(c) and (d). The district manager's determination in the matter shall be final.
PART 45 .... INDEPENDENT CONTRACTORS
III. 45-1 General Enforcement Policy for Independent
MSHA's policy is to issue citations and, where appropriate, orders to independent contractors for violations of applicable provisions of the Act, standards or regulations. This policy is based on the Mine Act's definition of an "operator," which includes "independent contractors performing services or construction" at mines.
MSHA's enforcement policy regarding independent contractors does not change production-operators' basic compliance responsibilities. Production-operators are subject to all provisions of the Act, and to all standards and regulations applicable to their mining operations. This overall compliance responsibility includes assuring compliance by independent contractors with the Act and with applicable standards and regulations. As a result, both independent contractors and production-operators are responsible for compliance with all applicable provisions of the Act, standards and regulations.
This "overlapping" compliance responsibility means that there may be circumstances in which it is appropriate to issue citations or orders to both the independent contractor and to the production- operator for a violation. Enforcement action against a production-operator for a violation(s) involving an independent contractor is normally appropriate in any of the following situations: (1) when the production-operator has contributed by either an act or by an omission to the occurrence of a violation in the course of an independent contractor's work; (2) when the production-operator has contributed by either an act or omission to the continued existence of a violation committed by an independent contractor; (3) when the production-operator's miners are exposed to the hazard; or (4) when the production-operator has control over the condition that needs abatement. In addition, the production-operator may be required to assure continued compliance with standards and regulations applicable to an independent contractor at the mine.
Inspectors should cite independent contractors for violations committed by the contractor or by its employees. Whether particular provisions apply to independent contractors or to the work they are performing will be apparent in most instances. However, some provisions of the Act, standards or regulations may not be directly applicable to independent contractors or their work; or independent contractor compliance with certain standards or regulations may duplicate the production-operator's compliance efforts. As questions regarding such matters arise, the inspector's supervisor shall contact the district manager, who shall consult with the Administrator's Office.
- Filing of Legal Identity Reports Under 30 CFR Part 41
Independent contractors working at mines are not required to file legal identity reports under Part 41. Procedures for the identification of independent contractors are explained below under 45.3, MSHA Identification of Independent Contractors.
- Training of Independent Contractors and Their Employees
Under 30 CFR Part 48
- Construction Workers
See Part 48 in this Manual, Paragraphs 48.2(a)(1)/48.22(a)(1) - "Miner."
- Comprehensive and Hazard Training
See Part 48 in this Manual.
- Production of Training Records
Independent contractors required to provide training are also required to promptly produce training records to show that training has been provided. The location where the records are maintained, such as at a mine site, or at the contractor's office, is up to the independent contractor.
- Enforcement Action for Training Violations
An order should be issued under Section
104(g) of the Act to the direct employer of
any miner who has not received the required
training under Part 48. This means that a
104(g) order should be issued to the
independent contractor for any persons who
are directly employed by the independent
contractor and who are not properly trained.
Similarly, a 104(g) order should be issued to
the production-operator for any untrained
persons directly employed by the production-
operator. See also Item 3), below. In
addition, it is the policy of Coal Mine
Safety and Health to issue a corresponding
citation to the independent contractor or
production operator for failure to provide
the miner with the requisite training.
2) Violations Involving Production-Operators
Each production-operator is required to have an approved training plan under Part 48 and to comply with the provisions of that plan in training each of the miners it employs. As discussed in Item 3), below, where it cannot be determined who employs an untrained person, the production-operator should be issued a 104(g) order for that person.
3) Violations Involving Independent Contractors
Independent contractors are not required to have an approved training plan under Part 48. However, as discussed, independent contractors and their employees must be trained in accordance with Part 48. Independent contractors may comply with the training requirements by either making arrangements to have their employees trained under an existing approved training plan and program, or by filing and adopting their own approved training plan.
In either event, the independent contractor should be issued a 104(g) order for any of his/her employees who are not trained in accordance with a plan approved under Part 48. Care should be taken when issuing a 104(g) order to an independent contractor when several contractors or subcontractors are present at the mine. The inspector must be sure that the untrained person is directly employed by the independent contractor to whom the 104(g) order is issued. If it cannot be determined who employs the untrained person, the production-operator should be issued the 104(g) order.
- Construction Workers
- Notification, Investigation, Reporting and
Recordkeeping Requirements Under 30 CFR Part 50
Independent contractors working at mines are required to comply with all provisions of Part 50 pertaining to their employees. In order to assure accurate reporting and recordkeeping and to avoid duplication, it is important that production-operators and their independent contractors carefully coordinate their Part 50 responsibilities.
For detailed information on the reporting responsibilities and obligations of independent contractors, see Part 50 in this Manual.
45.2(c) Definitionof Independent Contractor
The Mine Act defines an independent contractor as "any person, partnership, corporation, subsidiary of a corporation, firm, association or other organization that contracts to perform services or construction at a mine." If the "person, partnership, ... or other organization" contracts for the production of a mineral, the "person, partnership, ... or other organization" is classified as a mine operator, and it is required to file a Legal Identity Report. In addition, it will be assigned a mine identification number, and it is subject to all requirements applicable to a mine operator.
45.3 MSHA Identification of Independent Contractors
Any independent contractor that requests an identification number will receive one from MSHA. However, unless cited for a violation, only those independent contractors performing work at mine sites, or with contracts to perform at a mine(s) any of the nine types of services or construction listed below, are required by MSHA to have identification numbers:
- Mine development, including shaft and slope sinking;
- Construction or reconstruction of mine facilities;
including building or rebuilding preparation plants and
mining equipment, and building additions to existing
- Demolition of mine facilities;
- Construction of dams;
- Excavation or earthmoving activities involving mobile
- Equipment installation, such as crushers and mills;
- Equipment service or repair of equipment on mine
property for a period exceeding five consecutive days
at a particular mine;
- Material handling within mine property; including
haulage of coal, ore, refuse, etc., unless for the sole
purpose of direct removal from or delivery to mine
- Drilling and blasting.
MSHA does not require independent contractors to have identification numbers as a precondition to bidding for work contracts on mine property. If an independent contractor becomes a successful bidder and if the contract to be performed covers any of the nine types of service or construction listed above, the contractor must obtain an identification number.
MSHA identification numbers have no effect on the compliance responsibility of either the mine operator or the independent contractor. Mine operators have compliance responsibility for all activities at the mine, regardless of whether or not the independent contractor in question has an MSHA identification number. The mine operator's overall compliance responsibility includes assuring each independent contractor's compliance with the Act and with MSHA's standards and regulations. Independent contractors are responsible for compliance with applicable provisions of the Act, standards and regulations, regardless of whether or not they have an MSHA identification number.
Whenever an independent contractor submits a written request for an identification number, the contractor must furnish the information listed under 30 CFR 45.3(a). If an independent contractor cited for a violation does not have an MSHA identification number, the inspector should obtain the information required by 30 CFR 45.3(a) from the independent contractor. Information required under 30 CFR 45.3(a)(1), (2) and (3) may also be obtained from the production-operator (see 30 CFR 45.4(b)).
Each independent contractor who has an identification number uses it on all job sites. In the event of a change in ownership (but same trade name), a new identification number should be assigned. This means that each independent contractor is assigned only one identification number to be used on any and all job sites.