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U.S. Department of Labor


Mine Safety and Health Administration
1100 Wilson Boulevard
Arlington, Virginia 22209-3939
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. STRICKLINKEVIN G. STRICKLIN
                     Administrator for
                     Coal Mine Safety and Health

                      NEAL H. MERRIFIELD 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:

Section 103(k) provides:

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