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VOLUME III INTERPRETATION AND GUIDELINES ON ENFORCEMENT OF THE 1977 ACT May 16, 1996 PART 49 .... MINE RESCUE TEAMS 49.2(a) Mine Rescue Team Requirement When a mine operator has more than two mine rescue teams located at a mine rescue station, only the teams that have been designated by the operator to satisfy this Section will be subject to the requirements of Part 49. 49.2(a) Mine Rescue Service Arrangements When an operator enters into an arrangement with another entity to provide mine rescue services, that entity must have super- visory control over the members of the mine rescue teams so that the team members can be instructed to present themselves at the mine site in the event of an emergency. Examples 1 through 5 illustrate some of the arrangements for mine rescue services that may be encountered, together with instructions on what is necessary to establish these arrangements. The examples are picture files in the .GIF format and are titled :
49.2(c) Mine Rescue Team Qualification Persons who became members on and after July 11, 1981, must satisfy the 1-year underground experience requirement in this rule. For the purposes of mine rescue work only, surface miners whose work regularly takes them underground qualify for the underground experience requirement and, therefore, are eligible for team membership. The underground experience requirement is waived only for those miners who were on established mine rescue teams as of July 11, 1981. 49.2(d) Advance Ground Transportation Arrangement The operator must make arrangements in advance for ground transportation so that the teams and equipment can be dispatched to the mine with minimum delay in the event of a mine emergency. This does not mean, however, that the ground transportation must remain at the mine rescue station at all times. 49.2(h) Operator Statement The statement submitted by the operator shall state that either the operator has independently provided mine rescue teams or that the operator has entered into an agreement with another entity for this service. The name and the location of the entity providing the service shall also be included. When mine operators make mine rescue services available through agreements with other mine operators or independent entities, such arrangements shall be reviewed by the district manager to assure that the mine rescue capability to be provided satisfies the requirements of Part 49. 49.3(a) Alternative Mine Rescue Capability for Small and Remote Mines Where the total underground employment of the operator's mine and any surrounding mine(s) within 2 hours ground travel time is less than 36 persons, an operator may provide for alternative mine rescue capability under Section 49.3. However, it should be noted that compliance with Section 49.2 (Availability of Mine Rescue Teams) is required where a group of mines are located within 2 hours of ground travel time to each other and collectively employ 36 or more miners underground, unless the underground mine qualifies for alternative rescue capability for special mining conditions under Section 49.4. 49.5(a) Designation of Mine Rescue Stations Every operator of an underground mine is required to designate, in advance, the location of the mine rescue station serving the mine. 49.5(b) Centralized Storage for Mine Rescue Equipment All of the mine rescue equipment required by Section 49.6 (Equipment and Maintenance Requirement) must be stored at one location (see RESCUE5.GIF). MSHA recognizes that in certain circumstances the same protection provided by this requirement may also be achieved through different storage arrangements. However, storage of mine rescue equipment at more than one location may only be adopted through the petition for modification process (30 CFR Part 44). 49.5(d) Inspection of Mine Rescue Station When a mine operator has more than one mine rescue station within 2 hours ground travel time of the mine or mines, only the designated rescue station and teams assigned to that station will be subject to the requirements of Part 49. If, for example, three mines owned by different companies enter into an arrangement and designate a common mine rescue station, while still maintaining their own individual teams and stations, inspection activity for Part 49 compliance would be limited to the designated station and to teams assigned to that station only. However, if the operator designates more than one mine rescue station, each station and teams assigned to those stations must meet the requirements of Part 49. Mine rescue facilities and/or teams situated on the property of an underground mine and maintained by mine operators or independent contractors will be regularly inspected. If an independent contractor maintains mine rescue facilities and/or teams on mine property, citations or orders for Part 49 violations should be issued to the independent contractor under Part 45. Mine rescue facilities and/or teams located off mine property which are maintained by independent contractors for purposes of Part 49, shall be examined at least twice each year. This examination shall be for purposes of determining whether the mine operators served by the independent contractors have arranged for the required rescue services. When independent contractors located off mine property are not equipped to provide the services required by Part 49, the mine operators served by these contractors shall be issued citations for failure to have arranged for the required rescue services. In each citation, the operator should be notified of the deficiencies in his/her contractor's mine rescue services. To abate the violation, the operators must either make other arrangements which satisfy Part 49, or have the contractor correct the deficiencies. Where independent contractors who provide rescue team services to operators are located off mine property, and they refuse or impede MSHA examination of their facilities, the mine operators served by the contractor shall be issued citations for failure to arrange for the rescue services required by Part 49. To abate the violation, the operators must make other arrangements which satisfy Part 49 or assure that examination of the contractor's facilities can be properly made. These instructions do not apply to those state agencies who have entered into a Memorandum of Understanding with MSHA. The terms of the Memorandum of Understanding will govern the frequency of inspections and actions to be taken. Inspection of Mine Rescue Stations Serving Both Coal and Metal/Nonmetal Mines Where coal mining and metal/nonmetal mining are performed in the same geographical area, the mine operators for both types of mines may designate the same mine rescue station to serve their mines. If this situation exists, the mine rescue station shall be inspected by personnel from either Coal Mine Safety and Health or Metal and Nonmetal Mine Safety and Health, but not by personnel from both entities. To avoid duplication of MSHA inspections and minimize confusion as to which entity should inspect mine rescue stations, the policy below shall be followed:
State Mine Rescue Stations There are currently eight states which have entered into a Memorandum of Understanding with MSHA concerning mine rescue. They are:
These states provide mine rescue services to mines within their respective jurisdictions. According to each MSHA-State agreement, inspections of rescue stations are to be conducted every 6 months by a designated MSHA representative in the district where the station is located. Particular attention should be given to paragraph IID of the agreement which sets out the procedures to be followed for cooperative correction of violations of 30 CFR Part 49. Under this paragraph, violations must be brought immediately to the attention of the appropriate state official so that the state may take prompt action to correct them. However, no citation or order should be issued to the state. Additionally, the following guidelines should be used in conducting inspections:
49.6 Equipment and Maintenance Requirements In some instances, inspectors may find that operators exceed the minimum requirements for the equipment. If, for example, equipment for three teams is located at a mine rescue station and if sufficient equipment is maintained in operating condition for two teams, there would be no violation if the remainder of the equipment is not in operating condition. However, the inspector should recommend that the non-operational equipment be segregated or conspicuously identified to avoid the possibility of its use in an emergency. In order to minimize duplication of mine rescue equipment required by 30 CFR 49.6(a)(5), (6), and (7), cap lamps and gas detectors maintained at the mine where the mine rescue station is located, in a location known by and immediately accessible to mine rescue team members in the event of an emergency, can satisfy this requirement. A minimum of 12 permissible cap lamps, a charging rack, and two gas detectors must be readily available for mine rescue use. The gas detectors must be appropriate for each type of gas that may be encountered at the mines served. 49.8(a) Training for Mine Rescue Teams Persons who become team members on and after July 11, 1981, must complete the initial 20-hour training course prescribed by MSHA's Office of Educational Policy and Development. The initial training requirement is waived only for those miners on established mine rescue teams as of July 11, 1981, because such miners would already be familiar with the use, care and maintenance of the selected breathing apparatus. 49.8(b)(2) For training purposes, the wearing of the breathing apparatus by team members while under oxygen must total 2 hours every 2 months. This may be accomplished by wearing the apparatus continuously for 2 hours or in smaller increments which total 2 hours for the 2-month period. Mine rescue team members who participate in a bonafide mine rescue contest will receive an 8-hour training credit which may be applied toward fulfilling the annual refresher training requirements of 30 CFR 49.8(b). The training credit must be used within 365 days following the date of the mine rescue contest in which it was earned. Only one 8-hour training credit will be granted and used during any one calendar year. In order to receive such credit, it is necessary that preparation for and participation in the mine rescue contest include the following elements required by Section 49.8(b):
- where applicable, the use, care, capabilities, and limitations of auxiliary mine rescue equipment, or a different breathing apparatus; - any other advanced mine rescue training and procedures as prescribed by MSHA's Educational Policy and Development (EP&D); and - mine map training and ventilation procedures. PART 50 .... ACCIDENTS, INJURIES, ILLNESSES, EMPLOYMENT, AND COAL PRODUCTION IN MINES III. 50-1 Citations for Failure to Report Under Part 50 An evaluation of operator compliance with reporting requirements under Part 50 shall be made at every regular inspection. To ensure that the issuance and assessment of citations for failure to report as required by Part 50 is handled uniformly, inspectors will issue a citation for each separate instance of a failure to report an accident, injury or illness, or quarterly employment and production. Each such citation will be subject to a separate penalty. Inspection personnel should carefully review the degree of negligence associated with all Part 50 citations. Any violation of Part 50 considered to be the result of a high degree of negligence or other unique aggravating circumstances may be referred for special assessment. Where circumstances indicate that there has been flagrant conduct surrounding a failure to report, such as attempting to conceal the fact that an injury occurred, serious consideration should be given to a reckless disregard negligence evaluation. The facts involved in such a violation should be carefully documented and transmitted to the appropriate District Manager for use in determining whether a recommendation for special assessment is appropriate. III. 50-2 Reporting of Silicosis and Other Pneumoconioses 30 CFR Part 50 requires that operators report each accident, occupational injury, or occupational illness at the mine. An "occupational illness" is defined in 50.2(f) as:
30 CFR 50.20-6(b)(7)(ii) states:
Diagnosis of an "occupational illness or disease" under Part 50 does not automatically mean a disability or impairment for which the miner is eligible for compensation, nor does the Agency intend for an operator's compliance with Part 50 to be equated with an admission of liability for the reported illness or disease. MSHA views a disability as distinguishable from a reportable diagnosis of silicosis or other pneumoconioses. A diagnosis would be reportable to MSHA if there is evidence of exposure coupled with an x-ray reading of 1/0 or above, using the International Labor Office (ILO) classification system. On the other hand, states may require different or additional evidence in determining disability such as a physical examination, lung function test, etc. MSHA's position is that any medical diagnosis of a dust disease or illness must be reported under Part 50. A medical diagnosis may be made by a miner's personal physician, employer's physician, or a medical expert. If a chest x-ray for a miner with a history of exposure to silica or other pneumoconiosis-causing dusts is rated at 1/0 or above, utilizing the ILO classification system, it is MSHA's policy that such a finding is a diagnosis of an occupational illness, in the nature of silicosis or other pneumoconiosis and, consequently, reportable to MSHA. An operator need not report to MSHA within 10 days any chest x- ray result if the operator is actively seeking a more definitive second opinion in a timely manner and has supporting documentation. MSHA will not take enforcement action for exceeding the 10 day reporting requirement in this situation. If a second opinion by a "B" reader substantiates the first diagnosis of 1/0 or above, then the illness must be reported to MSHA. If the second opinion by a "B" reader does not rate the x-ray at 1/0 or above, using the ILO classification system, MSHA will continue to stay enforcement action if operators seek a third opinion by an additional "B" reader to determine a majority opinion. MSHA will accept this majority opinion as an accurate diagnosis for reporting purposes. A "B" reader is a physician certified by the Center for Disease Control's (CDC) National Institute for Occupational Safety and Health (NIOSH) to interpret chest radiographs to detect pneumoconiosis using ILO guidelines. III. 50-3 Part 50 Audit After Fatal Accident A Part 50 reporting audit shall be conducted at a mine where a fatal accident occurs. Upon notification of a fatal accident, the Mining Information Systems Division of the Denver Safety and Health Technology Center will assemble and send to the appropriate district or subdistrict manager the forms and instructions for conducting the Part 50 audit. A mine which has been audited within a year preceding a fatal accident need not be audited again, unless the district manager or the Administrator determines otherwise. III. 50-4 Part 50 Notification, Investigation, Reporting and Recordkeeping Requirements for Independent Contractors Independent contractors who are performing any of the nine types of services or construction listed under Section 45.3, Part 45 of this Manual, must report accidents, injuries and illnesses under 30 CFR 50.20. In addition, these independent contractors must maintain records of such reports under 30 CFR 50.40; and they must file quarterly employment reports under 30 CFR 50.30. Except as otherwise determined by the district manager, other independent contractors are not required to comply with the above referenced regulatory sections. Without regard to the type of work being performed, all independent contractors are required to comply with the notification, investigation and preservation of evidence requirements of 30 CFR Sections 50.10, 50.11 and 50.12 respectively, and they are required to comply with 30 CFR 50.41 regarding verification of reports. To minimize the burden of quarterly employment reporting, for those contractors required to do so, only a single MSHA Form 7000-2 must be completed and filed for any calendar quarter in which a contractor has worked. Only the types of work listed under Paragraph 45.3, Part 45 of this Manual need to be reported. As in the case of mine production operators, the information necessary to complete a Form 7000-2 by an independent contractor is the average number of employees and the total employee hours involved in the work being reported. However, this employment information must be developed separately for the surface mines and for the underground mines where the work being reported was performed. In addition, in order to ensure compatibility of MSHA statistics, separate 7000-2 forms are to be used for work performed at metal and nonmetal mines and at coal mines. For work performed at underground mines, this information must be separated for work performed underground and for work performed on the surface of underground mines, and then entered on the appropriate line. For work performed at surface mines, employment information must be separated for the several types of surface mines indicated on the form (e.g., strip, open pit or quarry, auger mine, dredge, etc.), and then entered on the appropriate line. When work being reported on any particular line was performed at more than one site, the required employment information should be computed together. The independent contractor and the production-operator may coordinate the submission of their quarterly reports so that the production-operator actually submits the report covering the contractor. When this is done, a separate /forms/elawsforms/7000-2.htmForm 7000-2 must be filed for the operator and for each independent contractor. It should also be remembered that the independent contractor is individually responsible for complying with 30 CFR 50.30. Consequently, if the production-operator fails to submit the separate quarterly employment report covering the independent contractor, that contractor may be cited for a violation of its compliance responsibility. III. 50-5 Reporting and Investigating Blocked Passage Through the Tailgate Side of Longwall Mining Operations in Coal Mines It is MSHA policy to promptly investigate any fall of roof or rib in a coal mine which blocks miners' travel off a longwall through the tailgate entries. Continued mining or any other action that may alter the site of the fall or any related area is not to be permitted until the MSHA's investigation is completed, except as recognized by 30 CFR 50.12. Maintaining the entries that provide access into and out of longwall face areas is important to miner safety, particularly in the event of life-threatening circumstances. Accordingly, falls which block tailgate entries so that passage out of a longwall panel is limited to one side are to be promptly investigated. Under 30 CFR Section 50.10, mine operators are required to immediately contact the local MSHA district or subdistrict office if an accident occurs. The term "accident" is defined by 30 CFR Section 50.2(h)(8) to include any unplanned fall that occurs in active workings which impedes passage. The purpose of this investigation is to evaluate the cause of the fall, including the roof support being used and the conditions that caused it to fail. To conduct a proper evaluation, it is important that the fall and the surrounding area not be disturbed. Therefore, under 30 CFR Section 50.12, mining or any other action that may alter the site of the fall, or the related area, is not to be permitted, except for the reasons identified in 30 CFR Section 50.12. When a report is received that passage through the tailgate side of a longwall panel is blocked, every attempt should be made to expedite the investigation. To do so, the investigation should begin no later than the end of the shift following the shift on which the fall was reported to MSHA. 50.2 Definitions Mine operators are required by 30 CFR Part 50 to report each accident, occupational injury, or occupational illness at a mine. A hoisting accident is defined in 50.2(h) (11) as:
This definition covers hoisting equipment in a shaft or slope, such as elevators, cages, skips, slope care, platforms and mechanical escape facilities, that is intended or used for the transportation of personnel, equipment, or material. Damage to such equipment meeting the definition in 30 CFR 50.2(h) (11) would, therefore, be reportable under 30 CFR 50.10 and 50.20. 50.20 Preparation and Submission of MSHA Form 7000-1 and 50.30 Preparation and Submission of MSHA Form /forms/elawsforms/7000-2.htm7000-2. The Code of Federal Regulations requires mine operators and independent contractors performing certain types of work activity on mine property to submit reports of injuries, illnesses, and accidents, as defined in 30 CFR 50.2(e), (f), and (h), respectively, and worktime information as discussed in 30 CFR 50.30. Sections 50.20-1 and 50.30-1 contain general instructions for submitting these data on MSHA Forms 7000-1 and 7000-2, respectively. In an effort to reduce the reporting burden and cost to operators and contractors, MSHA has provided a toll-free number connected to a facsimile machine in Denver. The number is (888) 231-5515. Operators and contractors may submit a facsimile via this number in lieu of mailing the original of MSHA Form 7000-1 or Form 7000-2 to the Office of Injury and Employment Information in Denver, formerly known as the Health and Safety Analysis Center. Additionally, the toll-free number in Denver may be used to send the second copy (pink copy) of Form 7000-1 containing return-to-duty information. In order to differentiate it from the original, however, the word "PINK" must be printed at the top of the copy. Experience has demonstrated that material prepared in pencil or in blue ink does not transmit legibly. If such forms are transmitted by "fax" and prove to be illegible, the sender will be contacted to resubmit by regular mail. To avoid duplication, however, do not send a copy of the same form through the mail unless requested to do so. Problems with the receiving facsimile machine in Denver may be addressed by calling (303) 231-5453 during normal work hours. Section 50.20-1 also requires that the first copy (yellow copy) of Form 7000-1 be sent to the appropriate MSHA Coal or Metal and Nonmetal district office. The district offices also have facsimile machines with which to receive this document; however, the numbers are not toll free. A list of these fax machine numbers follows.
50.20-3 Criteria - Differences Between Medical Treatment and First Aid The use of prescription medication alone for any treatment other than for an eye injury is not a reportable medical treatment for an occupational injury under Title 30, Code of Federal Regulations, Section 50.20-3. Use of prescription medication for eye injuries remains a reportable treatment under Paragraph 50.20-3(a)(5). 50.30 Preparation and Submission of MSHA Form 7000-2 See 50.20/50.30 above. Starting in January 1998, mine operators and contractors also have the option to complete and submit MSHA Form /forms/elawsforms/7000-2.htm7000-2 to MSHA directly over the Internet through MSHA's homepage (http://www.msha.gov) or through the Department of Labor's homepage (http://www.dol.gov) under "elaws." To complete MSHA Form 7000-2, follow the instructions provided on the screen. The system guides mine operators and contractors through the reporting process, taking into consideration the type of reporting operation. The system advises users to print a copy of the completed form for company files. This copy will document compliance with reporting requirements under 30 CFR 50.30. Companies filing electronically will also receive E-Mail confirmation that required information has been received by MSHA. The system is designed for initial filings submitted for the preceding quarter only. Amended filings that correct information previously filed, or those submitted late, must continue to be mailed to the Office of Injury and Employment Information (OIEI), P. O. Box 25367, Denver, Colorado, 80225 or faxed toll-free to (888) 231-5515. Part 62 NOISE ENFORCEMENT POLICY 62.1 Operator Noise Exposure Determination 1. Can I still use the noise monitoring equipment I already have? Yes, if it meets the criteria listed in section 62.110(b)(2) which states that a miner's dose determination must:
- integrate all sound levels over the appropriate range; - reflect the miner's full work shift; - use a 90-dB criterion level and a 5-dB exchange rate; and - use the A-weighting and slow response instrument settings. 2. If I determine, without physically sampling, that a miner's noise exposure equals or exceeds the action level (AL), or exceeds the permissible exposure level (PEL), maximum level, or dual hearing protection level (DHPL), am I still required to notify the miner? Yes. Such notification is required regardless of the source of information that shows an overexposure. For example, you must provide the miner written notification that his or her exposure equals or exceeds the action level (or exceeds other specified levels) based on information from the equipment's manufacturer or other source. You must also notify the miner of the corrective actions you will implement. 3. Do I have to satisfy the "notification" requirement regarding areas of exposure at or above the action level (85 dBA) by posting a sign at the entrance to the mine site listing those areas at or above 85 dBA or do I have to give the notices to each individual miner who is exposed to noise at or above 85 dBA? Each miner must be provided with individual written notification. This will ensure that all miners are properly notified and informed of any additional precautions necessary to protect their hearing. 4. What is the definition of "miner" for noise monitoring and who does this definition cover? The noise standard does not include a separate definition of a miner. For purposes of the standard, the definition of "miner" is the same as in Section 3(g) of the Mine Act. It means any individual working in a coal or other mine. 5. A lot of questions have arisen regarding monitoring, and whether or not monitoring is specifically required. Please clarify my responsibilities regarding noise monitoring. The standard requires that you establish a system of monitoring that evaluates each miner's noise exposure sufficiently to determine continuing compliance with all aspects of the standard. This means that whatever system you establish must keep you aware of when a miner is overexposed to sound levels, whether your exposure determinations are based on information from the manufacturer, sampling conducted by an insurance carrier, or by MSHA. 6. Will MSHA issue a citation for failure to notify miners of an overexposure to noise if I conducted the monitoring prior to September 13, 2000? (Example: I conducted sampling or monitoring in December 1999 and didn't notify the miners of the results until September 2000). You may use the monitoring results for compliance with Section 62.110 of the noise standard. However, within 15 calendar days following the effective date of September 13, 2000, you must notify the miners in writing of their exposure determinations and any corrective actions being taken. 7. If a miner's noise exposure is assessed using a personal noise dosimeter and does not equal or exceed the action level, how often does he or she have to be monitored? The noise monitoring provision is performance oriented and does not specify the frequency of monitoring. The standard does require you to establish a system of monitoring that evaluates each miner's noise exposure sufficiently to determine continuing compliance with the standard. 8. When initially assessing miners' noise exposures under Section 62.110, may I use one miner's sampling results as representative of multiple miners who perform the same tasks on the same or another shift, such as operating similar equipment? Yes, depending on the circumstances, you may monitor areas of the mine or representative job tasks in order to obtain sufficient information to determine compliance with the standard. Monitoring a representative number of the miners operating the same type of equipment is acceptable. However, the monitoring results for one miner operating a piece of equipment may not be consistent with noise exposures for other miners operating similar, but not the same, equipment. 9. If I voluntarily establish a hearing conservation program and enroll all miners at my mine, will I have to monitor for noise exposure at the action level? If you can determine that a miner's noise exposure is at or above the action level without monitoring and you notify the miner according to the requirements of 62.110, then specific sampling for action level noise exposure is not necessary. However, notifying the affected miners that their exposures are at or above the action level is still required. 10. Can I cover the requirement for notifying a miner of exposure to excessive noise within 15 days by posting the notice on the bulletin board? How should I ensure that a miner received a copy of the results? Can I require the miner to date, time, and initial the document? Section 62.110(d) specifically requires that you notify each miner of any overexposure to noise in writing within 15 calendar days. Posting the notification on a bulletin board will not meet this requirement. How you ensure that the miner received the notification is not covered by the standard. 11. How does MSHA expect mine operators to control the noise exposure of maintenance workers or examiners who have varying tasks and do not work at set locations, but travel throughout the mine, plant or mill? You must use feasible engineering and administrative controls to reduce the miners' exposures to allowable levels. If such controls do not exist or do not reduce the miners' noise exposures to the PEL, MSHA will evaluate the circumstances for possible issuance of a "P" code. MSHA's experience shows that administrative controls work best in this situation, but you have the choice of using either engineering or administrative controls, or a combination of both, to reduce miners' noise exposures. 12. Does this standard eliminate the need for me to have qualified people conduct noise monitoring? Part 62 does not require you to have persons "qualified" by MSHA to conduct noise monitoring. However, persons conducting noise monitoring must be knowledgeable of how to measure noise exposures. 13. Will MSHA continue to qualify persons to conduct noise monitoring? No, but MSHA will continue to conduct noise sampling courses for the industry. 14. What error factors will MSHA use for enforcing the four exposure levels (AL, PEL, DHPL, and maximum level)? MSHA will continue to use a 2 dBA error factor. MSHA will issue citations for the following noise exposure doses: 66% for AL, 132% for PEL, and 1056% for DHPL. 62.2 Maximum Level 1. Can miners be exposed to sound levels exceeding the maximum level of 115 dBA for any period of time? Will MSHA permit any duration of exposure above 115 dBA before citing a mine operator? When will MSHA cite operators? Is the maximum level a 15-minute average of exposure? Will impact/impulse noise be considered as part of the maximum level? MSHA will continue to enforce the maximum level in the same manner that it was enforced under its previous noise standards. In most cases MSHA noise exposure determinations will be based on full-shift surveys using a personal noise dosimeter. MSHA may issue a citation if sound levels exceed 117 dBA (115 dBA maximum level + 2 dBA error factor) for at least 30 consecutive seconds. When a miner is exposed to 117 dBA for more than 15 minutes, the 90 dBA PEL is also exceeded. In such cases, the Agency will cite operators for exceeding the 90 dBA PEL rather than for exceeding the maximum level. The new noise standard does not include a separate standard for impact/impulse noise. MSHA stated in the preamble to the standard that impact/impulse noise will be integrated along with continuous noise in determining a miner's exposure to the maximum level as well as to all other required levels. Sampling of an individual miner's exposure in the hearing zone will be conducted with a noise dosimeter and a sound level meter using the A-weighting slow response setting for determining compliance with the maximum level. 2. What am I required to do if I exceed the maximum level? As with exposure exceeding the 90 dBA PEL, if you exceed the maximum level you are required to use all feasible engineering and administrative controls, provide and ensure the use of hearing protection, enroll affected miners in an HCP, post any administrative controls that are being used on the mine bulletin board, and provide copies of those administrative controls to affected miners. All requirements of § 62.130 continue to apply. 62.3 Noise Controls 1. Where I have multiple pieces of the same type of equipment, how will MSHA address the other pieces while the first piece is being equipped with noise controls? Compliance and feasibility are determined on a case-by-case basis. MSHA intends to give operators a reasonable amount of time to put controls on equipment. In some cases this may require a prolonged period of time, while in other instances it may not. 2. If a doctor fits a miner with hearing protection will this be permitted in lieu of installing expensive noise controls? No. Personal hearing protection is not considered a noise control. 3. What if I have changed administrative controls and MSHA determines a miner is being overexposed? If MSHA sampling shows that a miner is overexposed to noise and the administrative and/or engineering controls you have installed are not effective, MSHA will determine if additional feasible controls are available that would be effective. If so, a citation will be issued. 4. Will I be issued a 104(b) order for failure to install engineering and administrative controls which MSHA believes are feasible? MSHA will first issue a 104(a) citation for failure to install feasible controls when required to do so under Section 62.130. If during a compliance inspection, MSHA finds that you failed to abate the citation within the specified time period, then MSHA may issue a 104(b) order. 5. What will MSHA do in a situation where I have determined that a miner is overexposed to noise and I am in the process of installing controls? MSHA will evaluate your efforts to attain compliance and a citation may not be warranted. 6. Will MSHA allow me to bring onto mine property older equipment that causes a miner's noise exposure to exceed the PEL? The final noise standard does not prevent you from bringing any equipment onto your property. However, the noise standard does require you to use both feasible engineering and administrative controls, if necessary, to reduce a miner's exposure to the PEL. 7. How will MSHA address labor/management agreements that affect the use of administrative controls? MSHA policy regarding labor/management agreements will not be affected by the new noise standard. 62.4 Feasibility of Engineering and Administrative Controls 1. Will MSHA continue to apply its metal and nonmetal noise decisions as decided by the Federal Mine Safety and Health Review Commission as the basis for how it will determine feasibility of engineering controls? Yes, the noise decisions will continue to be applicable to feasibility of controls. 2. In enforcement, how does MSHA apply the noise case factors? Consistent with the Commission decisions, in enforcing the noise standard, MSHA will continue to consider three factors in determining whether engineering controls are feasible at a particular mine. These factors are: (a) the nature and extent of the exposure; (b) the demonstrated effectiveness of available technology; and (c) whether the committed resources are wholly out of proportion to the expected results. 2(a) The nature and extent of the exposure. In considering the nature and extent of exposure as a factor in determining whether controls are feasible, MSHA will consider the following components: source(s) of noise, level (dose), and duration of exposure. For example, the exposure of miners, such as percussive drillers or bulldozer operators, to high levels of noise on a continuous or daily basis would require the application of feasible controls. 2(b) The demonstrated effectiveness of available technology. MSHA intends to continue its longstanding policy currently in effect for metal and nonmetal mine operators of determining what constitutes an effective control, i.e., where a control or a combination of controls could achieve at least a 3 dBA reduction in noise exposure. This represents a 50% reduction in sound energy. Where a single engineering control does not provide at least a 3 dBA reduction in a miner's noise exposure, you must consider the expected level of reduction from a combination of technologically available controls. We have many years of experience in achieving significant reduction in sound levels on most pieces of equipment in metal and nonmetal mines. Working together with metal and nonmetal operators and equipment manufacturers, MSHA has made great strides in significantly reducing noise exposure through the use of available noise controls. MSHA has also gathered information on effective noise controls for coal mining equipment. The Office of Technical Support works closely with the inspectorate in providing information on effective noise controls. When MSHA published the rule on September 13, 1999, the Assistant Secretary for MSHA sent a letter to all mine operators offering assistance to conduct noise evaluations and provide advice on noise controls. MSHA will continue to be available to assist operators and miners and has made available a comprehensive list of equipment manufacturers, suppliers of acoustical material and links to other Internet sites where lists of noise consultants may be obtained. 2(c) Whether the committed resources are wholly out of proportion to the expected results. In considering this factor, MSHA will determine whether the cost of abatement is out of proportion to the expected reduction in noise exposure. If a control is extremely costly for the operator but the expected reduction in noise exposure is minimal, MSHA may determine that it is not economically feasible for you to install the control. For example, MSHA will not require rod and ball mills to be enclosed at costs that could reach hundreds of thousands of dollars. However, MSHA may require that control rooms and other practical controls be implemented to reduce noise exposure. 3(a). With respect to determining feasibility of engineering and administrative controls, does the "nature and extent of the overexposure" mean that controls which would be deemed feasible where noise exposures are 105 dBA might not be deemed feasible where the noise exposure is only 95 dBA? Or, does it mean that the feasibility of engineering controls may depend on how many miners are overexposed? Engineering and administrative controls that are feasible to reduce a miner's noise exposure at a very high level will be considered feasible at lower levels above the PEL as well. For example, controls that are determined to be feasible where noise exposures are 105 dBA will also be considered feasible where noise exposures are 95 dBA. Because the noise standard is based on each miner's personal exposure to noise, feasibility does not depend on the number of miners overexposed. 3(b). Does the phrase "the demonstrated effectiveness of available technology" mean anything more than that a control or combination of controls must achieve at least a 3 dBA noise reduction in order to be deemed technologically feasible? The phrase means that a single engineering control or a combination of controls which is likely to achieve at least a 3 dBA reduction in a miner's noise exposure is technologically feasible. In addition, a control or combination of controls that brings noise exposure down to compliance levels, but does not achieve a 3 dBA reduction, may also be considered feasible. MSHA will, however, consider any adverse effects that the controls may have on the health and safety of the miner. 3(c). Does MSHA have some threshold of proportionality beyond which a control is deemed infeasible? Is there a value or range of values to guide the determination of whether costs are "wholly out of proportion to the expected results"? Does it depend on how many miners the reduction applies to? Although neither MSHA nor the Commission has placed a value on the cost of a control per decibel of reduction or the number of miners affected, MSHA will not require an irrational expenditure to achieve a minimal noise reduction. 4. How will MSHA determine the feasibility of administrative controls? In determining the feasibility of administrative controls, MSHA will consider the same three factors that the Commission outlined for determining the feasibility of engineering controls, that is, nature and extent of the exposure, demonstrated effectiveness of available technology, and whether resources are wholly out of proportion to expected results. For example, MSHA will not require you to hire additional workers in order to "exhaust" all feasible administrative controls. 5. Will MSHA require an operator to use feasible engineering controls before implementing administrative controls? No. A mine operator can choose to use either feasible engineering controls or feasible administrative controls, or a combination of both, as long as the controls reduce the miner's noise exposures to the PEL. When administrative controls are used, the mine operator must post the procedures for the controls and provide a copy to the affected miners. 62.5 "P" Codes 1(a). How does MSHA's "P" code enforcement policy work? If an MSHA inspector finds that a miner's noise exposure at a facility exceeds the PEL despite the fact that the mine operator is using all feasible engineering and administrative controls, no citation will be issued as long as the mine operator has posted and provided affected miners with copies of any administrative controls being used and is complying with the requirements of Section 62.150, which includes enrollment in a hearing conservation program, and Section 62.160 which requires the use of hearing protectors. In these circumstances, the mine operator will be in compliance with Section 62.130(a) and (b) even though miners at the operation are exposed above the PEL, and a "P" code will be established for the mine. The "P" code is an administrative device that allows MSHA to track situations where feasible engineering and administrative controls do not reduce miners' noise exposure to the PEL. MSHA regularly reviews and re-evaluates "P" code situations to see whether feasibility conditions have changed. If new technology becomes available that could affect outstanding "P" code feasibility determinations, MSHA will notify the mining community of the new technology by posting information about it on the MSHA web site. Thereafter, the local MSHA inspector will notify individual mine operators about the new technology if their mines have received a "P" code for which the new technology is relevant. Any failure by MSHA to notify, however, does not relieve the mine operators from their responsibility to implement feasible controls whenever those controls become available. MSHA will make a case-by-case determination of whether implementation of the new technology is feasible for each individual mine that currently has "P" code status due to a noise source to which the new technology applies. There may be reasons why the new technology may not be deemed feasible for a particular mine even though it is effective elsewhere. For example, because of the nature of the operation and the miners' activities, the new engineering control may not be capable of achieving a 3 dBA reduction in the miners' noise exposure at that particular facility, even if it has been shown to reduce the noise level from a particular piece of equipment by 3 dBA. If MSHA deems the new technology to be feasible for the particular mine, the operator will be so informed and expected to implement it within a reasonable period of time to be determined by MSHA on a case-by-case basis. If the operator does not do so, the "P" code designation will be terminated, and a citation will be issued for failing to utilize all feasible controls to achieve the PEL. If the mine operator installs the new technology and still does not achieve the PEL, the "P" code would be continued, and a citation would not be issued. Of course, the "P" code would terminate without the issuance of a citation if the mine operator reduces miners' exposures to the PEL through the use of any combination of engineering and/or administrative controls, even if they differ from the new technology identified by MSHA. 1(b). Will existing "P" code determinations in the metal/non-metal sector be recognized under the new Standard? Yes. A mine operation that is subject to a "P" code determination under the old metal and nonmetal noise standard will continue to be subject to the "P" code determination when the new standard takes effect. The determination that engineering and administrative controls were not feasible under the old metal nonmetal standard will continue when the new standard takes effect on September 13, 2000. Thus, if you were operating under a "P" code determination before September 13, 2000, you will continue to operate under the "P" code determination after that date and will not be cited for failing to achieve the PEL -- although, as indicated in the answer to the previous question, MSHA regularly reviews and re-evaluates "P" code situations and may conclude in the future that new feasible technology has become available. Of course, you also must comply with the other requirements of the new standard -- including determining the noise exposures of the miners, enrolling those exposed at or above the action level in a Hearing Conservation Program, and providing and ensuring that hearing protectors are worn by miners whose exposures exceed the PEL whenever they are exposed to a noise source that is responsible for their overexposure. 2. How does MSHA expect that new technology will be developed? MSHA's Office of Technical Support regularly reviews research on new control technology. In addition, MSHA expects the mining industry and equipment manufacturers to work together to develop new or improved noise reduction technology. MSHA will identify and disseminate information about new controls as we become aware of them. 62.6 Hearing Conservation Programs 1. Can I establish a Hearing Conservation Program (HCP), conduct training, or conduct audiometric testing before September 13, 2000? If you have enrolled miners in an HCP, trained the miners, and conducted audiometric testing according to Part 62, MSHA will accept both the training and testing. However, the annual training date and date for annual audiometric testing will be based on the standard's September 13, 2000 effective date, regardless of when you established the HCP, conducted training or conducted audiometric testing. In other words, annual retraining or audiometric testing will be due within a year of the effective date even if you conducted your HCP training or had an audiometric test conducted in July 2000. 2. Once a miner is enrolled in a hearing conservation program, is there a procedure for removing him or her from the program? After a miner is enrolled in an HCP, the miner's noise exposure has been reduced to below the AL, and all requirements of Section 62.150 related to the HCP have been met, the miner can be removed from the program. 3. How will MSHA evaluate the effectiveness of my HCP? Effectiveness will be based on factors such as the incidence of miners experiencing a Standard Threshold Shift (STS) or hearing loss as a result of noise exposures while working at the mine. 62.7 Personal Hearing Protection 1. How will MSHA enforce the requirements for hearing protectors, and do the requirements for mandatory use of hearing protectors or dual hearing protectors require a miner to wear the hearing protector(s) continually throughout the entire shift? If the miner is exposed to sound levels at or above a TWA8 of 85 dBA (the action level) and up to a TWA8 of 90 dBA (the PEL), the use of hearing protectors is optional. The use of hearing protectors is required when a miner is exposed to noise at or above the action level and the miner has incurred a standard threshold shift or more than 6 months will pass before the miner can take a baseline audiogram. If exposure is above a TWA8 of 90 dBA (the PEL), the operator must first use any combination of engineering and administrative controls that are feasible to lower the miner's exposure to a TWA8 of 90 dBA. In addition to installation of feasible engineering and administrative controls, hearing protectors must be worn by a miner until the miner's exposure is reduced to the PEL, so long as the equipment responsible for the overexposure is operating. If exposure is above a TWA8 of 105 dBA, the operator must also provide and ensure the use of dual hearing protectors. If a miner is not wearing the required hearing protector(s) in these circumstances, MSHA will issue a citation to the mine operator. MSHA notes that hearing protectors do not necessarily need to be worn for an entire shift. For example, MSHA will not require hearing protectors to be worn in quiet places, or when the miner is no longer exposed to the excessive noise source(s) when the equipment is not running. Under those circumstances, MSHA will not issue a citation to the mine operator when a miner is not wearing a hearing protector. This answer applies to dual hearing protection as well. 2. Must hearing protection devices have a noise reduction rating (NRR) to be acceptable? Either an NRR rating or another scientifically accepted indicator of noise reduction is required. 3. Do miners who wear hearing aids also have to wear Hearing Protection Devices (HPDs)? Yes. Hearing aids are not accepted as HPDs. MSHA's definition of a hearing protection device is defined as any device or material, capable of being worn on the head or in the ear canal that is sold wholly or in part on the basis of its ability to reduce the level of sound entering the ear. Not all devices or materials that are inserted in or that cover the ear to reduce the noise exposure, for example a hearing aid or cotton, meet the definition of a hearing protector under the standard. 4. Will deaf and other hearing impaired miners have to wear HPDs and do I have to reduce their noise exposure? Yes, all provisions of the noise standard apply. 5. Will I be permitted to use noise canceling ear muffs? You will be permitted to use noise canceling ear muffs for hearing protection, if they have a Noise Reduction Rating or another scientifically accepted indicator of noise reduction, but you cannot use them as an engineering control. In addition, they must be permissible to be used inby the last open crosscut in underground coal mines and in certain gassy metal and nonmetal mines. 6. What action will MSHA take if a miner for whom I provided hearing protection under my HCP is observed not wearing the HPD where the noise exposure exceeds the PEL? You have the responsibility to make certain that required personal hearing protection is worn. If MSHA determines that a miner is overexposed to noise in this circumstance a citation will be issued. 7. Will a miner have to wear dual hearing protection if he or she leaves the area where dual hearing protection is required? No. 8. If a miner does not participate in audiometric testing, does he or she have to wear hearing protection if his or her exposure is between 85 dBA and 90 dBA? No. In this circumstance it would not be possible to determine if the person had a standard threshold shift. However, if the operator became aware that the individual had a standard threshold shift, for example, a letter from the miner's personal doctor, the miner must wear hearing protection. 9. Is a miner required to wear dual hearing protection if he or she has a medical condition (for example, ear infection) that prevents him or her from wearing personal hearing protectors? Section 62.140 of the standard requires a miner to wear dual hearing protection when working in an environment where dual hearing protection is required. For miners with a medical condition such as an ear infection, Section 62.160(a)(5) requires that the mine operator allow the miner to choose a different hearing protector. 10. What about miners who wear eyeglasses and are required to wear ear muff type hearing protection? The standard does not exempt from its requirements miners who wear eyeglasses. MSHA believes that the proper selection and combination of hearing protectors should alleviate this concern. For example, newer models of ear muffs, which are readily available, are specifically designed to be used with safety glasses. Other models which were specifically designed for use with hard hats or welding shields are also readily available. 11. Are personal hearing protectors required for anyone traveling or working in areas above 90 dBA or just for those employees who are known to be overexposed? All miners must wear hearing protection when the miner's full-shift noise dose exceeds the PEL or Dual Hearing Protection Level (DHPL); when the maximum level exposure exceeds 117 dBA; or, when the full-shift noise dose is between the AL and PEL and the miner has incurred an STS or it will be longer than six months to obtain a baseline audiogram. When such exposures occur, miners must wear their hearing protection whenever they are exposed to sound levels that could contribute to their dose (i.e., greater than or equal to 80 dBA for the AL, and greater than or equal to 90 dBA for the PEL and DHPL). 62.8 Audiometric Testing 1. How will MSHA enforce the 30-day time frame in Section 62.172(a)(4) in which the operator must obtain the results of hearing data from testing firms? Although MSHA expects mine operators to comply with the 30-day time frame, if the operator can demonstrate that compliance was beyond its reasonable control, MSHA may allow the operator more time to obtain the audiometric test results. MSHA will make this determination on a case-by-case basis. Compliance is not beyond the operator's control when the physician, audiologist, or qualified technician is directly employed by the mine operator. 2. What factors should a physician or audiologist consider when making a determination that hearing loss is neither work-related nor aggravated by occupational noise exposure under the reporting requirements for reportable hearing loss? Mine operators should inform physicians and audiologists to routinely ask about a miner's employment history and both occupational and non-occupational noise exposure in order to make a well-informed diagnosis. If there is evidence of non-occupational causes for the hearing loss, the physician or audiologist should look beyond the work place for the cause of the hearing loss. Unless the physician or audiologist can determine that the miner's hearing loss is neither work-related nor aggravated by occupational noise exposure, the mine operator must report the reportable hearing loss. 3. Will I have to make individual contact with miners about voluntary audiograms once I have implemented a hearing conservation program? You must inform miners that audiograms are available. The standard does not specify how the miners are to be informed. You must offer miners the opportunity for audiometric testing of the miner's hearing sensitivity for the purpose of establishing a valid baseline audiogram to compare with subsequent annual audiograms. Posting of audiometric test dates and locations in areas where all affected miners can see them will be acceptable. 4. Can I use existing baseline audiograms? Yes, you may use a current audiogram as a baseline audiogram for purposes of complying with Section 62.170(a) of the standard if it meets the test procedures specified in Section 62.171. 5 Can I wait a full year when using mobile test vans to get audiometric testing completed? Section 62.170(a)(1) of the standard requires you to offer audiometric testing to miners within six months of their enrollment in your HCP. If a mobile test van is used, you are allowed up to 12 months from the miner's enrollment in your HCP to offer audiometric testing. However, you should schedule baseline audiometric testing as soon as possible after miners are enrolled in your HCP. Up to 12 months is allowed for those situations where getting access to a mobile testing facility is not possible during the initial six months. 6. Is a quiet period required prior to audiometric tests other than the baseline? No, it is the mine operator's choice whether to implement a quiet period for tests other than the original baseline. 7. Does an audiologist or physician have to be present in the mobile van during audiograms? No, but he or she must be directing or supervising the work of the qualified technician. 8. Must a new baseline be established for a miner who was previously enrolled in an HCP, was subsequently laid off from work for more than 12 months, and is called back to work at the same mine? No, you may either use the prior baseline audiogram or establish a new baseline. 9. If a miner leaves my mine because I close the mine and takes a job at a different mine, can the new mine operator use the miner's last audiometric test as a baseline for that miner? Section 62.190(c)(2) requires that a successor mine operator use the baseline audiogram, or revised baseline audiogram, as appropriate, obtained by the original mine operator to determine the existence of a standard threshold shift or reportable hearing loss. If the second mine where the miner is employed is owned by the same company, the operator of that mine must use the existing audiometric test record. If the mine is owned by a different company, the operator may choose to use the miner's existing audiometric test record if it meets the test procedures in Section 62.171, or the operator can establish a new baseline. 10. If an employee declined an audiogram when initially offered, but then changes his or her mind at a later date, do I have to provide the audiogram? Yes, if the miner is still enrolled in a hearing conservation program. You would then have six months (up to 12 months if a mobile test van is used) from the date the miner opted back into the audiometric testing program to have the test conducted. 11. Must an audiogram of a miner who normally wears a hearing aid be conducted with or without the hearing aid? It must be conducted without the hearing aid. The audiogram must determine the miner's current hearing ability without the use of the hearing aid. 12. Are audiograms conducted pursuant to OSHA's Hearing Conservation Amendment fully acceptable under MSHA's new standard? Yes, they are. 13. Who pays for an evaluation or referral when a miner is referred to a physician for an evaluation and/or treatment due to a medical pathology of the ear prior to the mandatory audiogram being given, but the miner is in a Hearing Conservation Program? If the physician believes that the medical pathology is due to workplace noise exposure or the wearing of hearing protectors while at the mine, then the mine operator has to pay for the evaluation or referral. On the other hand, if the physician believes that the medical pathology is not due to workplace noise exposure or the wearing of hearing protectors while at the mine, then the mine operator is not responsible for paying for the evaluation or referral. Whether the mine operator is responsible for paying for the evaluation or referral should be made clear to the miner. 62.9 Audiometric Test Records 1. I own multiple mines under the same company name and each mine has a separate MSHA ID number. If I close one mine and transfer the miners to a different mine within my company, what happens to the audiometric test records? If the mine to which you transferred the miners is owned by the same company, you must use the existing audiometric test records. In addition, you must maintain the audiometric test records for the duration of the affected miner's employment, plus at least six months. 2. What if a miner quits my mine and returns five months later requesting copies of his or her records? You must provide him or her a copy of the audiometric test records. Section 62.171(c) requires that you retain audiometric test records for the duration of the affected miner's employment, plus at least six months. In addition, Section 62.190(a)(3) gives the former miners access to records which indicate their own exposure. 3. What if a former miner has not been employed at my mine for the past eight months, and he or she requests a copy of his or her audiometric test records from me? You are only required to maintain audiometric test records for the duration of the affected miner's employment, plus at least six months. However, if you still have the record, it should be provided to the miner upon request. 62.10 Hearing Loss 1. A miner's audiometric records for a company show no hearing loss. The miner quits the mine and goes to work for another company and later takes an audiometric test with the new company which shows a reportable hearing loss. What are the previous company's responsibilities under Part 62? The previous company does not have any responsibilities regarding this miner's hearing loss under Part 62. However, the previous company may have responsibilities for workers' compensation claims under State law. 2. The standard defines a reportable hearing loss as a 25 dB shift from the employee's baseline audiogram or revised baseline audiogram. What happens if a worker has successive 10-dB shifts with revision of the baseline? Is it possible that a 25 dB shift would never be identified? Could a worker have progressive hearing loss well above 25 dB and this not be a reportable event? . The definition of "reportable hearing loss" specifies that only an original baseline or a revised baseline audiogram which shows a significant improvement in hearing are to be used for reporting purposes. 3. How should I deal with hearing loss due to aging? Tables 62-3 and 62-4 of the standard include correction factors for both males and females. However, any such adjustment must be made to both the baseline and annual audiograms. 4. Must I still report hearing loss diagnosed by a physician or for which compensation has been awarded? Yes, it is required to be reported under 30 CFR Part 50. 5. When and how soon will I have to report a hearing loss under 30 CFR Part 50? All hearing loss, including hearing loss diagnosed by a physician, or for which compensation has been awarded is reportable under Part 50 within 10 working days from when the operator becomes aware of the hearing loss, diagnosis of hearing loss, or award of compensation. 62.11 Training 1. Must I pay miners for the training required once they are enrolled in a hearing conservation program? Yes. 2. I plan to have my audiometric testing service provider conduct the required training. Will MSHA accept their certification that the training was conducted? No. Mine operators must certify that the training was provided under Section 62.180(b). However, the audiometric test provider can conduct the training. 3. Will MSHA develop a generic training program to assist me in complying with the requirements of a hearing conservation program? Yes. MSHA is developing a video that, when shown to miners enrolled in an HCP will meet the training requirements of Section 62.180. Once completed, the video will be made available to the industry through the National Mine Health and Safety Academy. 4. Will MSHA provide me with a guide to set up a noise training program? In addition to a training video, training materials related to noise are available through the National Mine Health and Safety Academy and from various sources including the National Institute for Occupational Safety and Health and through the Internet. MSHA's web site at http:\\www.msha.gov has a section on noise that contains links to several organizations that can provide useful information on evaluating noise exposures, controlling sound levels, and hearing testing and conservation including:
- Occupational Safety and Health Administration - American Conference of Governmental Industrial Hygienists - American Industrial Hygiene Association - American Speech-Language-Hearing Association - Council for Accreditation in Occupational Hearing Conservation - National Council of Acoustical Consultants - National Hearing Conservation Association Yes, as long as all required elements of Parts 46, 48, and 62 are covered. 6. How will MSHA expect me to make audiometric testing records available to MSHA personnel? It was not MSHA's intent that records be provided immediately to authorized representatives of the Secretaries of Labor and Health and Human Services. MSHA agrees that providing immediate access to records might be too restrictive or burdensome on the industry. Following current practice, MSHA intends that authorized representatives of the Secretaries have access to records within a reasonable amount of time that does not hinder the authorized representatives' conduct of business. In most cases MSHA expects that this will be no longer than one business day. 7. What is MSHA's definition of a "successor operator? " A successor operator is an operator who has taken over a mine from another company. The transfer of HCP, audiometric testing and training records applies. 62.12 MSHA Monitoring 1. Will MSHA continue to perform noise monitoring under the new standard? Yes. For example, during mandatory mine inspections and technical noise investigations, MSHA will continue to evaluate miners' noise exposures to ensure the operator's compliance with the noise standard. Whether an operator's system of monitoring is effective will be based on how well the monitoring system protects miners. MSHA intends to evaluate the effectiveness of a mine operator's monitoring system by how well the system achieves the specified goals of the standard. Overexposure may indicate deficiencies in the mine operator's noise monitoring system and may result in close scrutiny of the program by MSHA. 2. How will MSHA measure the nature and extent of potential overexposure to noise at a particular mining operation? MSHA will measure the nature and extent of noise exposure at a particular mine using a personal noise dosimeter. Personal noise dosimeters are designed to measure a miner's personal noise exposure and shall be worn over the course of a full shift to get an accurate picture of the employee's noise exposure. Personal noise dosimeter results can show whether or not a miner's noise exposure exceeds the PEL. 62.13 Citations and Orders 1(a). If noise is "emanating" from one piece of equipment and the result is overexposure to more than one miner, will MSHA issue separate citations for each miner? If there is a single noise source causing an overexposure to numerous miners and its control would bring all exposed miners into compliance, then only one citation will be issued, provided all of the other requirements of the standard are met. The total number of miners overexposed will be indicated on a single citation. For example, one citation will be issued if an air track drill exposes both the driller and the drill helper to similar noise exposures above the PEL with the number of affected miners indicated on the citation. 1(b). How will MSHA address situations where multiple machines or pieces of equipment are the source of the overexposure? The operator will be cited separately for each overexposed miner. For example, at mills and preparation plants, where there are multiple noise sources, such as chutes, crushers, and screens, separate citations will be issued for each miner found to be overexposed. Likewise, at surface and underground mines where there are multiple noise sources such as dozers, loaders, haul trucks, etc., separate citations will be issued for each miner found to be overexposed. 2. There are many provisions of the standard, which, if violated, could result in a citation. (Example: I used the wrong threshold setting on a miner's personal noise dosimeter when monitoring his/her exposure.) Will MSHA cite violations of such provisions? For each miner found overexposed, a single citation of either 62.120, 62.130, or 62.140 will be issued with all other Part 62 provisions violated grouped as part of the citation. For example, if a miner's exposure exceeds the PEL and you failed to provide training and offer audiometric testing, a single citation of 62.130 will be issued and provisions of the HCP that were violated will be stated in the body of the citation. Where a citation is pending abatement by either retiring or replacing a piece of equipment that is the source of noise, failure to maintain any controls implemented or to comply with requirements of an HCP will result in a 104(b) order or a 104(a) citation. Where a mine has been issued a "P" code, failure to comply with any of the conditions of the "P" code, including provisions of an HCP, will result in a separate citation for each miner affected. For example, if three miners exposed to the noise generated from a single piece of equipment that is covered by a "P" code are observed not wearing hearing protection, three separate citations will be issued. 3. How will MSHA determine if an overexposure under the new standard is a significant and substantial (S&S) violation? If miners are overexposed to the PEL, a citation will not be S&S if you provide miners with proper hearing protection and it is being worn. However, a citation will be S&S if proper hearing protection is not worn by miners. PART 100 .... CRITERIA AND PROCEDURES FOR PROPOSED ASSESSMENT OF CIVIL PENALTIES MSHA will periodically review its assessment policy to promote the effectiveness of the civil penalty assessment program. A committee of Headquarters representatives from the Office of Assessments, Coal Mine Safety and Health, and Metal and Nonmetal Mine Safety and Health will conduct the reviews. 100.3 Determination of Penalty Amount; Regular Assessment The penalty amount for a regular assessment is computer-generated utilizing the Part 100 point system. 100.3(b) Appropriateness of the Penalty to the Size of the Operator's Business The primary source of size data is MSHA's Information Resource Center (IRC). The IRC maintains these data as reported by mine operators and contractors on the Quarterly Mine Employment and Coal Production Report (MSHA Form /forms/elawsforms/7000-2.htm7000-2). When no data are available from the IRC, the secondary source of size data is an estimate of the average daily tons produced or hours worked. This estimate is obtained from the Management Information System (MIS) of the enforcement office responsible for inspecting-the mine and is converted to an annual figure. For assessment purposes, when size data are not available from either source for the previous calendar year, figures for the current year are used. Where data are not available for either the previous or the current year, the size is recorded as 0. The switch to the previous calendar year size figure is made during the month of March each year, or as soon thereafter as the information becomes available. For example, calendar year 1999 data are used beginning in March 2000. 100.3(c) History of Previous Violations Overall history is based on the number of paid or final order violations in a preceding 24-month period. For assessment purposes, this period is defined as ending with the seventh month prior to the date the citation or order is issued. For example: the 24--month period used to calculate history for a citation or order issued in July 2000 would be January 1998 through December 1999. This 6-month delay in counting violations is used to ensure a more accurate count of previous violations. 100.3(f) Demonstrated Good Faith of the Operator in Abating the Violation A 30 percent reduction in the base penalty amount of a regular assessment is granted for timely abatement of a citation issued under Section 104(a) or 104(d) of the Mine Act. The 30 percent reduction does not apply to any orders or citations issued in conjunction with orders, citations issued for working in defiance of a closure order, or citations issued for denial of right of entry. 100.3(h) Effect of the Civil Penalty on the Operator's Ability to Continue in Business Within 30 days of receipt of a proposed assessment, an operator may submit a written request to the District Manager for review of its financial status. The request should include an explanation of how payment of the civil penalty would affect the operator's ability to continue in business. Upon receipt of such request, MSHA will suspend processing of the case until a determination is made as to whether a financial reduction is warranted. The District Manager will advise the operator to submit complete financial information including tax returns, income statements, and balance sheets for the most recent 2-year period. The District Manager will forward this information to the office of Assessments with a memorandum outlining any additional information and comments concerning the operator's financial condition and compliance history. The Office of Assessments will review the submitted information and the operator's outstanding civil penalties and payment history, and decide whether any penalty adjustments may be made. The Office of Assessments will notify the operator of the final decision via certified mail. Upon receipt of the decision, the operator will have 30 days to either pay the proposed assessment or notify MSHA in writing of an intention to contest the proposed penalty. 100.4 Determination of Penalty; Single Penalty Assessment The determination of whether a violation will receive a single penalty assessment is made by computer. To qualify for a single penalty assessment, a violation must be a 104(a) citation that is non-significant and non-substantial (non-S&S), it must be timely abated, and it must be cited at a mine that does not have an excessive history of violations. Section 104(a) citations that are issued in conjunction with 107(a) imminent danger orders, citations issued for working in defiance of a closure order, and citations issued for denial of right of entry do not receive single penalty assessments, although some may be designated as non-S&S. 100.5 Determination of Penalty; Special Assessment
Special assessment is the process for determining an appropriate civil penalty without using the penalty tables in 30 CFR 100.3. Special assessment is mandatory for the following types of violations.
District Managers may recommend any other violation for special assessment if circumstances warrant. The following violations are required to be reviewed for special assessment.
Violations Requiring Submission of an MSHA Special Assessment Review Form
Completion of a Special Assessment Review (SAR) form (MSHA Form 7000-32) is mandatory for each violation that is reviewed for special assessment. When the District Manager determines that a special assessment is warranted, an SAR package shall be prepared and submitted directly to the Office of Assessments. For violations contributing to a fatal or serious injury accident (inspection codes E06/E07), an SAR package shall be prepared and submitted to the Office of Assessments whether or not special assessment is recommended. For a violation recommended for assessment under the flagrant violation provision of the Mine Act, the District Manager must submit the SAR package to the Administrator for review and approval. The Administrator will transmit the SAR package for a violation recommended for a flagrant violation assessment to the Office of Assessments. All SAR packages shall include a copy of the relevant citation or order; the Special Assessment Review form; copies of inspector notes, sketches, or photographs; relevant portions of required plans; accident investigation reports, data sheets, and/or memoranda; and other information that would assist the Office of Assessments in determining an appropriate civil penalty. The SAR form must describe the facts and circumstances justifying the recommendation for special assessment. For flagrant violations, a memorandum from the appropriate Regional Solicitor is also required to be included in the SAR package. When a violation is being reviewed for special assessment, the district office must ensure that the violation is immediately placed on hold for special assessment review in MSHA’s Standardized Information System (MSIS). This action prevents the violation from being automatically assessed as a regular assessment until the special assessment review process has been completed. Violations that are not placed on hold will automatically be marked assessment ready for regular assessment 30 days after issuance. District offices should not mark violations that are recommended for special assessment or violations contributing to a fatal or serious injury accident as assessment-ready in MSIS. The Office of Assessments will mark these violations assessment ready upon receipt of the SAR package. Excluding fatal, serious injury, or accident related violations, District offices should release the hold status in MSIS for any violation reviewed and not recommended for special assessment. Excluding flagrant, fatal or serious injury or accident related violations; violations with recommendations for special assessment shall be reviewed and forwarded to the Office of Assessments within 30 days of their issuance. An SAR package, as described earlier in this policy, will be included with the violation. Flagrant violations are required to be specially assessed. The SAR form check box shall be marked to identify all flagrant violations. Flagrant violations shall be reviewed and forwarded to the Office of Assessments within 90 days of their issuance. A SAR package, as described earlier in this policy, will be included with the violation. Violations contributing to a fatal or serious injury or accident are required to be reviewed for special assessment and forwarded to the Office of Assessments whether recommended for special assessment or not. Accident related violations shall be reviewed and forwarded to the Office of Assessments within 90 days of their issuance. An SAR package, described earlier in this policy, will be included with the violations. All violations associated with the accident shall be forwarded to the Office of Assessments at the same time. All violations will automatically be marked assessment ready for regular assessment 182 days after issuance regardless of any hold status. The Office of Assessments will review each recommendation for special assessment and make the final decision, conferring with the Coal or Metal and Nonmetal Mine Safety and Health program areas as necessary. District personnel should regularly review the Assessable Violations Not Marked Report (R-119 Report)to ensure violations recommended for special assessment or otherwise included in SAR packages have been processed by the Office of Assessments. 100.6 Safety and Health Conferences The safety and health conference is a scheduled meeting of a mine operator or miners' representative with MSHA district personnel to discuss the facts surrounding a citation or order. The purpose of the conference is to provide an opportunity to submit additional information regarding the violation. At this meeting, questions regarding the issuance of a citation or order, including the inspector's evaluation of negligence, gravity, and good faith, may be discussed. Conferences should be conducted before a penalty is proposed. They must be requested by the operator or other party within 10 calendar days of notification by MSHA of the opportunity for a safety and health conference. Generally, an operator should be notified of the right to a safety and health conference at the time the inspector issues a citation or order or at the inspector's closeout conference. This notification starts the 10-calendar-day period during which the operator or other parties may request a safety and health conference or submit additional information. The request or additional information should be submitted to the District Manager or designee. Requests for safety and health conferences will be honored based on the postmark date of mailing or date of telephone request. Conferences will be conducted within 15 calendar days of the request; however, it is understood that a small number of conferences may be scheduled later than 15 days due to extenuating circumstances. The issuing inspector, if not present, will be informed of the results of the conference. Each citation or order will be held by the district in a pending file for no more than 15 calendar days from issuance, unless a safety and health conference is requested. If no conference is requested, each terminated citation and all orders will be promptly transmitted to the Office of Assessments. In the case of Section 110(c) violations where an opportunity for conference has not been previously offered, the Headquarters office will notify the District Manager by memorandum that an operator or agent is to be given the opportunity for a safety and health conference. The memorandum will include a review and recommendation from the Office of the Solicitor, the name of the agent against whom a penalty is proposed to be assessed, the specific violation allegedly knowingly authorized, ordered, or carried out, and the reference to the MSHA special investigation file. The District Manager, or designee, will promptly notify the operator or agent of the opportunity for a conference and the specific matters to be discussed. The notice may be either in person or by telephone. This notice from the District Manager is the first formal notice to the operator or agent of MSHA's decision to assess an individual civil penalty against the agent. During the safety and health conference, the investigative file shall not be shown to the operator or agent, nor in any instance may the information contained in the file be released. The scope of the conference will not be whether a violation exists. Instead, the conference will focus on the facts and circumstances relating to the statutory criteria, and any facts in mitigation will be considered. The District Manager must provide the conference results to Headquarters, and the agent's correct home address, so that the Office of Assessments can transmit the proposed penalty assessment to the agent. 100.6(f) Referral of Citations/Orders for Assessment Terminated citations and all orders are to be promptly referred to the Office of Assessments. Section 105(a) of the Mine Act requires that a proposed civil penalty be issued for all violations" ... within a reasonable time after the termination of such inspection or investigation ...." For proposed assessment purposes, "reasonable time" is normally defined as within 18 months of the issuance of a citation or order or, in the case of a fatal accident, within 18 months of the issuance of the accident report. Absent unusual circumstances, citations and orders received for assessment after the 18-month period has elapsed, or too near the end of such period to ensure timely assessment, will not receive a proposed assessment. In order to propose a penalty as expeditiously as possible, the agency goals will be:
100.7(a) Notice of Proposed Penalty Notice of the issuance of a proposed assessment will be provided to the mine operator and miners' representative. A copy will be maintained in the Office of Assessments case file in Arlington, Virginia. Amended proposed assessments will be issued where the proposed assessment is found to be incorrect. When a proposed assessment has been timely challenged by the operator for sufficient reason (e.g., subsequent action issued, no conference held), processing of the civil penalty case will be suspended, pending review and a decision as to whether an amended proposed assessment will be issued. If an amended proposed assessment is issued, the operator will have 30 days from receipt of the amended assessment in which to pay or contest the penalty. If an amended proposed assessment is not issued, the 30-day period to pay or contest will begin on the date the operator receives notice that the proposed assessment will not be changed. An amended proposed assessment that increases the amount of the penalty will be issued only if the mine operator is notified of MSHA's intent within 30 days of the operator's receipt of the initial proposed assessment. A contested citation or order that is subsequently modified will not receive an amended proposed assessment. If the citation or order has not been adjudicated, the appropriate Regional Solicitor or Conference Litigation Representative will be provided with a copy of the modification. In the event a citation or order is vacated after a proposed assessment has been sent to the operator, the Office of Assessments will advise the operator, if appropriate, to disregard the proposed assessment. 100.8(a) Service Proposed assessments returned to the Office of Assessments by the Post Office will be researched once for a new or more appropriate address and will be re-mailed once in an attempt to effect service. Returned mail marked refused or unclaimed is considered service. Returned proposed assessments to individuals (agents) will be handdelivered by MSHA district personnel. A refusal to accept handdelivered proposed assessments is considered service. PART 104 .... PATTERN OF VIOLATIONS On October 1, 1990, regulations to identify mine operators who meet the criteria for a Pattern of Violations as outlined in 30 CFR Part 104 became effective. These regulations include procedures for initial screening of mines that may be developing a Pattern of Violations; criteria for determining whether a Pattern of Violations exists at a mine; procedures for issuance of potential pattern notice and final pattern notice; and procedures for termination of a Notice of Pattern of Violations. 104.2 Initial Screening At least once every year, District personnel are to complete an initial screening of each mine in their respective districts to determine whether there is sufficient cause to apply the pattern criteria for possible issuance of a potential Pattern of Violations notice. At the discretion of the District Manager, screenings may be conducted more frequently. The final rule does not specify the period of a mine's compliance history to be examined during the initial screening. Generally, a mine's 2-year compliance history will provide sufficient information for an evaluation of the health and safety conditions. In some cases, however, other factors such as interruption of mining activities or changes in mine ownership may suggest that a longer or shorter compliance history be reviewed. Persons conducting the initial screening should use sources such as computer printouts identifying the mine's compliance history relative to the types of enforcement action noted in 30 CFR 104.2(a); information in mine files such as prior inspection reports and inspector's notes; special assessment and enhanced assessment action; special investigation activities; and other relevant information resulting from inspector debriefings. Only violations and orders issued after October 1, 1990, can be considered in the initial screening process. The legislative history of Section 104(e) of the Federal Mine Safety and Health Act of 1977 does not support a distinction between large and small operations in establishing a pattern. Also, 30 CFR Part 104 avoids triggering the pattern notice based on a predetermined number of violations of particular standards. Therefore, a quantity of violations that might constitute a pattern at one mine may be insufficient to trigger a pattern notice at another mine. Accordingly, the initial screening criteria in 30 CFR 104.2 are to be applied on a mine-by-mine basis. This screening procedure shall also apply to each independent contractor's compliance history at a specific mine site. Each independent contractor at a mine site shall be screened as a separate entity. An independent contractor's compliance history shall not be collectively screened based on district or national data. Mitigating circumstances, as referenced in 30 CFR 104.2(b)(4), means causes or circumstances resulting in repeated violations that are beyond the control of the operator, even though the operator has made a diligent effort to comply with the regulations. For example, a severe geological condition may present complex mining problems and should be given full consideration where operators have undertaken methods to control the condition but nevertheless failed to maintain compliance. A record of the initial screening process for each mine is to be kept in the District until the next screening is conducted. 104.3 Pattern Criteria The pattern criteria shall be applied to mines identified in the initial screening process as having a compliance problem to determine if these mines demonstrate a potential Pattern of Violations. The objective will be to identify those operators who habitually allow the recurrence of violations. This review shall focus on the mine's history of repeated significant and substantial (S&S) violations of a particular standard, of standards related to the same hazard, or caused by an unwarrantable failure to comply. A pattern evident in any one of these categories may provide a sufficient basis for the issuance of a potential Pattern of Violations notice. It should be noted that violations used for pattern criteria are only those S&S citations/orders issued after October 1, 1990, that have become final either through the assessment process or through litigation. 104.4 Issuance of Notice 30 CFR 104.4 addresses two different notification processes. Section 104.4(a) relates to a District Manager's notification of a potential Pattern of Violations. Section 104.4(c) relates to the Administrator's decision on whether to issue a notice of a Pattern of Violations. The reasons for placing a mine in a potential Pattern of Violations category must be clearly stated in a notice to the mine operator in accordance with 30 CFR 104.4(a). Factors considered in the initial screening process and Pattern of Violations criteria application should be specified in the notice. For example, merely stating that a history of repeated S&S violations of a particular standard exists may not adequately explain to the operator why the mine may be placed on a pattern. The specific standard and the number of times it has been cited should be clearly defined in the notice along with all other supporting information. Furthermore, the District Manager should advise the operator in this notice that if the operator implements a program as specified in 30 CFR 104.4(a)(4), the operator must provide a written program to the District Manager within 20 calendar days or less from receipt of the notice. The notice of potential Pattern of Violations is to be sent to the mine operator by certified mail or hand delivered. The mine operator is required to post this notice on the mine bulletin board. Additionally, a copy of the notice must be sent to the representative of miners and the Pattern of Violations coordinator in headquarters. If a program is implemented in accordance with 30 CFR 104.4(a)(4), the District Manager may allow additional time to evaluate the effectiveness of the program. This time frame cannot exceed 90 days, and the District Manager can terminate the evaluation period at any time if the program's purpose is not being achieved. When notice of a potential Pattern of Violations has been sent to a mine operator, any subsequent action taken by the District Manager to rescind this notice is to be stated in a letter sent to the mine operator, representative of miners, and Pattern of Violations coordinator. If an operator resumes the practice that gave rise to the original notification of potential Pattern of Violations, a new notice can be issued to the operator based on the circumstances that resulted in the original notice, as well as the operator's most recent conduct. Under such circumstances, the District Manager would also take into consideration the operator's performance following the previous notification in determining whether to allow the operator another 90-day period to implement a program to reduce S&S violations. When the District Manager receives a decision from the Administrator to issue a Notice of Pattern of Violations, the District Manager is to send by certified mail, or hand deliver, the Notice of Pattern of Violations to the mine operator. This notice must be posted on the mine bulletin board. A copy of this notice also is to be provided to the representative of miners and the Pattern of Violations coordinator. Following notification to the operator, the District Manager should initiate appropriate inspection activities to ensure that the mine is inspected in its entirety during the following 90-day time frame. 104.5 Termination of Notice When a Notice of Pattern of Violations is terminated in accordance with 30 CFR 104.5, an authorized representative is to issue a notice of termination to the mine operator and is to provide a copy to the representative of miners and the Pattern of Violations coordinator. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
