[Federal Register Volume 59, Number 211 (Wednesday, November 2, 1994)]
[Proposed Rules]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27117]


[[Page Unknown]]

[Federal Register: November 2, 1994]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 42, 48, 70, 71, 75, 77, and 90

RIN 1219-AA79

 

Decertification of Approved Instructors and Certified and 
Qualified Persons

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would establish uniform procedures under 
the Federal Mine Safety and Health Act of 1977 (Mine Act) for the Mine 
Safety and Health Administration (MSHA) to decertify persons who have 
been designated as MSHA-approved instructors and those individuals 
certified or qualified to perform certain mining related tasks under 
the applicable training, safety and health regulations. These proposed 
decertification procedures would also apply to those persons who are 
deemed certified by MSHA as a result of their certification through 
State programs recognized by the agency. The proposal would provide 
notice of potential decertification by MSHA and would provide 
procedural due process, including a notice of proposed action, an 
informational meeting with the district manager, notice of the district 
manager's decision, appeal rights to the appropriate administrator, and 
a de novo post-decertification evidentiary hearing before an 
administrative law judge of the U.S. Department of Labor. In addition, 
the proposal would provide a new paragraph to replace the 
decertification of diesel mechanics previously proposed.

DATES: Written comments must be submitted by January 6, 1995.

ADDRESSES: Send comments to the Office of Standards, Regulations and 
Variances, MSHA, Room 631, Ballston Tower #3, 4015 Wilson Boulevard, 
Arlington, Virginia 22203.

FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office 
of Standards, Regulations and Variances, MSHA (703) 235-1910.

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act

    This proposed rule contains no information collection requirements.

II. Background

    In order to maintain safe and healthful working conditions in 
mines, MSHA recognizes that certain tasks and duties must be performed 
by individuals with the proper knowledge and expertise. MSHA has 
promulgated regulations in Title 30 of the Code of Federal Regulations 
(30 CFR), parts 48, 70, 71, 75, 77, and 90, that require particular 
activities to be performed by persons who have demonstrated their 
expertise or proficiency to the agency or to a State mining agency, who 
have been recognized as competent through training, testing or 
experience, and who have been formally ``approved,'' ``certified,'' or 
``qualified'' by MSHA or a State to perform these activities.
    MSHA regulations require some form of approval, certification, or 
qualification for a variety of activities. At coal mines, certification 
requirements apply to underground coal mine foremen, assistant foremen, 
and preshift examiners who, among other things, must be able to check 
for evidence of methane gas and identify other safety hazards. 
Individuals who collect respirable dust samples, maintain and calibrate 
dust sampling equipment, test noise levels, or examine surface coal 
mine work areas for hazardous conditions must also be certified by 
MSHA. Regulations for coal mines also require the qualification of 
persons who perform electrical work, examine impoundment structures, 
test methane and oxygen levels, operate hoists, or use explosives. 
Finally, MSHA approves instructors to provide training to coal, metal 
and nonmetal miners.
    Depending upon the type of approval, certification or qualification 
sought, an individual can become certified or qualified through an 
MSHA-administered program, or a State-administered program recognized 
by MSHA. Six activities require an approval, certification or 
qualification issued solely by MSHA: Respirable dust sampling; 
maintenance and calibration of respirable dust sampling equipment; 
noise level testing; examination of impoundments; electrical work 
(several States have electrical qualification programs approved by 
MSHA); and the training and retraining of miners.
    MSHA certifies and qualifies individuals to perform work in the 
remaining job categories, but also recognizes State certifications for 
the following: blasters; foremen; assistant foremen; preshift 
examiners; persons who conduct surface examinations; gas testers, and 
hoist operators. Because MSHA accepts State certifications for these 
job categories, the agency does not require an MSHA-issued 
certification except where there is no State certification program.
    Certification and qualification procedures require an individual to 
show the necessary competency in the appropriate areas. In general, an 
individual obtains an MSHA certification or qualification by attending 
an MSHA-sponsored or approved training program; by demonstrating the 
ability to perform the activities and duties stated in the regulations; 
or by successfully passing an examination. MSHA currently administers 
examinations for certification or qualification for dust sampling, 
noise level testing, maintenance and calibration of dust sampling 
equipment, electrical work, and examination of impoundments. In order 
to remain qualified to perform electrical work, the qualified person 
must satisfactorily complete an MSHA-approved coal mine electrical 
retraining program annually. All other certifications or qualifications 
have an indefinite duration requiring no recertification, except for 
those persons referred to in Sec. 75.100(c)(2) and 77.100(b)(2).
    Most State certifications are conditional upon minimum age and 
years of mining experience, undergoing required training, and passing a 
relevant examination. In many instances, States also require refresher 
training at specified intervals. The following coal-producing States 
have one or more certification programs: Alabama, Alaska, Arizona, 
Arkansas, Colorado, Illinois, Indiana, Kentucky, Montana, New Mexico, 
North Dakota, Ohio, Oklahoma, Pennsylvania, Tennessee, Utah, Virginia, 
West Virginia, and Wyoming. These States do not all maintain the same 
number and types of certification programs, nor does MSHA recognize all 
State certifications. For instance, all of these States, with the 
exception of Alaska, maintain programs for the certification of 
responsible individuals. MSHA recognizes all of these types of 
certifications. On the other hand, although Arkansas, Illinois, and 
Pennsylvania have electrical certification programs, MSHA does not 
recognize their State electrical certifications for compliance with 
Federal regulations.
    Currently, 30 CFR part 48 specifies procedures for revocation of 
the approval of part 48 training instructors. Under 30 CFR 48.3(i) and 
48.23(i), a person's approval to conduct training under part 48 can be 
revoked for good cause which may include failure to instruct a course 
within a 24-month period. It may also include failure to follow the 
approved training plan, inadequate teaching skills, or lack of subject 
matter knowledge. This proposed rule would revise and expand part 48 
procedures.
    This proposed rule would also for the first time establish formal 
procedures for the revocation of the certifications or qualifications 
of individuals as well as the termination of MSHA's acceptance of an 
individual's State certification or qualification. Although an 
individual may continue to hold a State certification, MSHA could 
discontinue its recognition or acceptance of the State certification by 
following the procedures in this part. Revisions to the applicable 
sections of 30 CFR parts 70, 71, 75, 77 and 90 are included within the 
proposed rule. MSHA anticipates extensive coordination with the States 
regarding pursuit of decertification actions within those States whose 
certifications MSHA recognizes. MSHA will be cognizant of any State 
decertification actions, initiated independently of those actions 
specifically referred or sought by MSHA, prior to the initiation of 
decertification actions by MSHA under this proposed rule.
    MSHA has reviewed the existing certification and qualification 
programs (and their attendant policies and procedures) administered by 
MSHA and the States. MSHA has concluded that decertification procedures 
are necessary to assure that specific activities are conducted only by 
persons who do so in compliance with the applicable regulations, or who 
are competently fulfilling their work responsibilities. The agency has 
previously taken decertification action against certain individuals on 
a limited basis. MSHA has determined that formalizing the process and 
standardizing the procedures would assure that adequate notice is 
provided and sufficient due process is afforded to affected 
individuals.
    MSHA has also re-examined the proposed decertification process 
specifically applied to qualified diesel mechanics and published in the 
Federal Register on October 4, 1989, (54 FR 40996) as part of its 
comprehensive proposal for the approval and use of diesel equipment in 
underground coal mines. Because of the generic nature of the procedures 
published and proposed today, the agency does not believe that it is 
necessary to have a separate procedure for qualified diesel mechanics. 
This procedure was published under proposed Sec. 75.1916(h) (54 FR 
40996). Consequently, today's proposal also contains a new paragraph to 
amend proposed Sec. 75.1915 which will serve to apply today's proposed 
part 42 to any qualification requirements for diesel mechanics which 
become a final rule. It is MSHA's intent to delete any reference to the 
decertification procedures referred to in proposed Sec. 75.1916(h) when 
that regulation becomes final.
    Although the assessment of civil penalties and the initiation of 
criminal action against operators or agents under 110 of the Mine Act 
do serve as effective enforcement measures, they may not, in all 
instances, induce necessary compliance with regulations. MSHA believes 
that the emphasis in the certification and qualification programs 
should be on maintaining the integrity of the certifications and the 
qualifications that are granted by ensuring that only those individuals 
who adequately discharge the obligations which a certification requires 
continue to hold such certification. The status of being certified or 
qualified is a privilege, not a right, and only those who carry out the 
responsibilities that are inherent in these credentials should be 
permitted to hold them.
    Uniform decertification procedures would provide another approach 
for MSHA to direct a change in the actions and attitudes of certified 
and qualified persons who do not comply with health and safety 
regulations. Temporary or permanent decertification should compel 
compliance with the law, as decertification could adversely affect that 
person's livelihood, and in the most severe instances, result in loss 
of employment. This proposed rule will encourage certified and 
qualified persons to maintain their level of competence and follow 
required procedures, by establishing appropriate remedial measures when 
MSHA identifies a certified or qualified person or an approved 
instructor who is not fulfilling his or her responsibilities, either 
deliberately or as the result of accident, oversight, or lack of 
training. MSHA believes that establishing uniform decertification 
procedures will ensure that certified and qualified persons fulfill 
their responsibilities with due regard for compliance with safety and 
health standards.

III. Discussion of Proposed Rule

Section 42.1  Purpose and Scope

    This part would establish the criteria and procedures for 
revocation of the authority given to persons to perform certain tasks 
that must be done by a certified or qualified person, or an approved 
instructor. In general, temporary or permanent decertification would be 
directed toward individuals who either repeatedly exhibit clear 
disregard for compliance with training, health or safety standards or 
other relevant regulations, or who commit a particular offense that is 
evidence of a serious disregard for the health and safety of miners 
affected by their activities.
    When evidence indicates that a certified person does not adhere to 
the required procedures that are necessary to fulfill his or her 
certified or qualified duties, or has failed to adequately fulfill his 
or her work responsibilities, the appropriate MSHA district manager 
would initiate the decertification process. During the course of the 
decertification process, the district manager would determine if the 
certified person's actions are intentional or the result of accident, 
oversight, or lack of training. Based upon the facts in each case, the 
district manager would decide the appropriate deterrent or remedial 
measures to be taken, such as those described below. MSHA intends that 
the agency's district managers would also be able to propose temporary 
or permanent decertification.
    The issuance of warning letters, proposal of remedial measures or 
temporary or permanent decertifications are actions intended to augment 
existing enforcement policies and procedures. When a certified person 
fails to adhere to required procedures due to accident, oversight, or 
lack of training, the district manager would generally issue a warning 
letter or propose remedial measures, such as additional training. If, 
after these initial measures are taken, the certified or qualified 
person continues to disregard proper procedures, MSHA would pursue 
temporary or permanent decertification.
    Temporary or permanent decertification would be directed toward 
individuals who repeatedly exhibit disregard for health and safety, and 
also in instances when a particular single offense is of such a serious 
nature that temporary or permanent decertification should be pursued. 
In some cases, a section 110 investigation, resulting in either the 
assessment of civil penalties against the certified person or the 
pursuit of criminal proceedings, will occur concurrently with temporary 
or permanent decertification. However, in particularly egregious cases, 
the district manager may propose temporary or permanent decertification 
before any section 110 investigation is completed.
    In summary, the district manager may choose to issue a warning 
letter, propose remedial action, or propose temporary or permanent 
decertification prior to, or concurrent with, action taken as a result 
of a section 110 investigation within the context of MSHA's current 
enforcement hierarchy.
    Also, the district manager may use these actions in circumstances 
where civil penalties under section 110(c) of the Mine Act are not 
applicable, for example, because the individual in question is not a 
corporate agent. Decertification action would allow for actions against 
individuals in such cases that do not currently receive additional 
enforcement actions.
    Additionally, while MSHA has authority to enter mine property but 
cannot cite an operator or contractor for refusal to allow the agency's 
examination of dust sampling equipment that is not located on mine 
property, the district manager may take action against the responsible 
certification holders by proposing temporary or permanent 
decertification when the certification holders have violated the 
regulations.
    MSHA's current policy and procedures for revocation of approval to 
be a part 48 training instructor allow the instructor to present 
evidence or witnesses to substantiate his or her position, either 
through a meeting or written submission to MSHA. The person may appeal 
adverse actions to the appropriate MSHA administrator. MSHA believes 
that these same procedures also would be appropriate for those persons 
who would be subject to decertification under this proposed rule. To 
ensure equitable and uniform treatment in all decertification actions, 
the scope of this rulemaking would include all activities for which 
MSHA issues certifications or qualifications, including the part 48 
instructor program. The proposed rule includes additional provisions 
for the issuance of warning letters and the person's right to a post-
decertification hearing before the Department of Labor's Office of 
Administrative Law Judges.
    In addition, the proposed rule would address the withdrawal of 
MSHA's recognition of an individual's State certification when 
circumstances warrant such action. MSHA believes that a single rule 
will afford the same level of due process for all proposed temporary 
and permanent decertifications. Because MSHA recognizes many State 
certification programs, cooperation between MSHA and State mining 
agencies is crucial to the success of any decertification program. 
Federal and State mine safety and health programs are more effective 
when the two government bodies operate cooperatively. In instances 
where the State confers upon an individual a certification which is 
recognized by MSHA, the agency would inform the appropriate State 
agencies that it has determined that an individual's actions may 
warrant the temporary or permanent decertification of the State-issued 
certification. In those States which have procedures to decertify 
individuals, MSHA would work closely with the State to investigate the 
matter and provide assistance in determining an appropriate course of 
action. In those cases where the State concludes that decertification 
is not appropriate and decides to take only limited action or no 
further action, but MSHA continues to believe stringent action is 
necessary, MSHA may decide to use the procedures outlined in this 
proposed rule to terminate MSHA's recognition of the individual's State 
certification for purposes of compliance with Federal regulations. MSHA 
would therefore retain the right to suspend or terminate its 
recognition of a person's State certification even if the State has 
chosen not to pursue temporary or permanent decertification.

Section 42.2  Definitions

    The following definitions would apply in this part:
    Administrator. Administrator would mean MSHA's Administrator for 
Coal Mine Safety and Health or Administrator for Metal and Nonmetal 
Mine Safety and Health, as appropriate.
    Certified. Certified would mean certified, qualified, or approved 
by MSHA, either directly or through a State program recognized by MSHA, 
to perform tasks or duties for which this chapter requires such 
specific authority. Similarly, certification would mean certification, 
qualification, or approval.
    Decertify. Decertify would mean to temporarily or permanently 
revoke a person's certification, qualification, or approval. If MSHA 
recognizes a person's certification by a State, then decertify would 
mean that MSHA would no longer recognize that person's State 
certification for purposes of compliance with this chapter. 
Decertification would mean temporary or permanent revocation of a 
person's certification, qualification, or approval.

Section 42.3 Warning Letter

    Proposed Sec. 42.3 would provide that when the evidence indicates 
that a certified person has failed to follow the tasks set by this 
chapter, or the person no longer satisfies the requirements for 
retention of certification, or a certified person's conduct leads to or 
contributes to a violation of any training, safety or health standard, 
the district manager may send a warning letter to that person by 
certified mail, return receipt requested. This section would provide 
that the district manager may notify the certified person through the 
warning letter that his or her conduct has been deficient without 
requiring any further action, or may require remedial measures to be 
undertaken by the certified person. In short, the warning letter must 
specify the basis for the warning. In some instances, MSHA may choose 
to forego the issuance of a warning letter and move directly to issue a 
notice of proposed action under Sec. 42.4 of this part.
    MSHA believes that certain types of deficient conduct on the part 
of a certified person may not require remedial action or would not 
require, or provide a sufficient basis for, the more severe sanctions 
of temporary or permanent decertification. In those instances, a 
warning letter from the district manager to the certified person would 
be sufficient to put the certified person on notice that his or her 
conduct in the performance of regulated duties was not commensurate 
with that normally required of a certified individual. The district 
manager may also include in the letter a statement that further 
deficient conduct may lead to decertification action by the Agency.
    Under proposed Sec. 42.3(b)(2), the warning letter would also 
provide a vehicle for the Agency to require the certified individual to 
take some remedial action in order to retain his or her status. In 
these instances, MSHA district managers would specify what type of 
remedial action on the part of the certified person would be necessary 
to retain certification. MSHA intends that it would also be able to 
take action, such as allowing the certified person to work only under 
supervision or requiring retraining where the circumstances would 
warrant it.
    The proposed rule in Sec. 42.3(b)(3) would also give the certified 
person 15 days from receipt to respond to the warning letter from the 
district manager or to initiate the required remedial action. MSHA 
foresees that some certified persons may choose to ignore the warning 
letter from the district manager, or notify the district manager that 
they object to the implementation of remedial action. If no response is 
forthcoming from the certified person, or the certified person failed 
to perform the required remedial action, the district manager would 
have the option of sending a notice of proposed action under proposed 
Sec. 42.4 to initiate temporary or permanent decertification.

Section 42.4  Notice of Proposed Action

    Proposed Sec. 42.4(a) would provide that when the evidence 
indicates that a certified person has not undertaken remedial action 
required by the district manager or that the temporary or permanent 
decertification is warranted because of the certified person's 
disregard of training, safety or health standards, or the certified 
person's conduct has led to or contributed to a violation of training, 
safety or health standards, the district manager would notify the 
certified person of the proposed action by a certified letter, return 
receipt requested.
    The notice would contain sufficient information to apprise the 
person of the action being initiated against him or her and the basis 
for the proposed action. Specifically, the notice would inform the 
certified person under proposed Sec. 42.4(a) (1) and (2) whether the 
district manager was proposing temporary or permanent decertification. 
Under Sec. 42.4(b) (1), (2), and (3) of the proposal, the notice would 
describe how the certified person failed to appropriately discharge his 
or her responsibilities. This part of the notice would specifically 
describe the certified person's conduct or actions giving rise to the 
decertification action. Under Sec. 42.4(c), the notice also would give 
the person 15 calendar days from the date of its receipt to submit 
information to or request an informational meeting with the district 
manager to discuss the proposed action. The notice would inform the 
person that if he or she fails to respond within 15 days, the 
administrative record of the matter would close and MSHA would 
temporarily or permanently decertify the person.
    MSHA intends that this notice would not replace the issuance of 
citations for violations of regulations, but rather would supplement 
these normal enforcement actions and would serve as an additional 
measure to induce compliance. MSHA anticipates that many cases could be 
resolved without proceeding to an informational meeting because the 
certified person would respond to the notice, submit explanatory 
information to the district manager, or correct inadequate performance 
to the district manager's satisfaction.
    A copy of the notice of proposed action and the return receipt, in 
conjunction with documentary evidence such as inspectors' notes or 
informational submissions, would remain on file in the district office 
and become a part of the administrative record of the action under 
proposed Sec. 42.5(c).
    Proposed Sec. 42.4(c) would also allow the certified person to 
submit information in place of or in addition to an informational 
meeting. When no informational meeting is requested, the certified 
person would be able to submit relevant information to the district 
manager within 15 calendar days from the date the person received the 
notice of proposed action. After this 15-day period, the administrative 
record would be closed.

Section 42.5  Informational Meeting

    Section 42.5 of the proposed rule would provide an opportunity for 
the certified person to present evidence or information on his or her 
behalf to the district manager relevant to the circumstances which gave 
rise to the initiation of the decertification action.
    Under proposed Sec. 42.5(a), if the certified person requests an 
informational meeting with the district manager within 15 calendar days 
from the date of receipt of the warning letter, the district manager 
would be required to hold such meeting within 15 calendar days of the 
certified person's request. MSHA intends that the certified person 
would have the right to legal representation at this meeting.
    During the meeting proposed under Sec. 42.5(b), the Agency would 
provide the certified person with an opportunity to present evidence or 
witnesses to support his or her position. In addition, this part of the 
proposed rule under Sec. 42.5(b) (1) through (6) would require the 
district manager to inform the certified person of the following at the 
informational meeting: the deficiencies in performance, and how the 
certified person had failed to appropriately fulfill required 
responsibilities; the proposed remedial action and the reasons for the 
action; the close of the administrative record 15 calendar days after 
the informational meeting date to allow for the submission of 
additional information; the projected date of the district manager's 
final decision; and the certified person's right to appeal this 
decision to the appropriate administrator under proposed Sec. 42.6. 
MSHA anticipates that the district manager may also send a letter 
requesting additional information which the district manager has 
determined is necessary to make a decision in the case. Such a letter 
would set reasonable time limits for the certified person to respond 
with the requested information.
    A detailed record of the meeting would be required to be kept under 
proposed Sec. 42.5(c). The record of the informational meeting would be 
kept in a format agreed to by the parties, such as a tape-recorded 
transcription or detailed notes kept by a designated individual, and 
would be made a part of the administrative record for the action.
Section 42.6  Notice of District Manager's Decision

    After an informational meeting, if requested, has been held, the 
district manager would proceed to issue a decision on the proposed 
action issued under Sec. 42.6. Proposed Sec. 42.6 would provide 
guidance to the district manager for the form and content of his or her 
decision.
    Proposed Sec. 42.6(a) would set a time limitation for the district 
manager to act after the administrative record closes in a 
decertification case, and would provide that the decision be based on a 
complete evaluation of the whole administrative record. The district 
manager would have 30 days to issue a decision once the administrative 
record closes. MSHA believes that the 30-day period is an appropriate 
amount of time for the district manager to carefully review and 
consider all of the evidence, and to issue a written decision.
    Under proposed Sec. 42.6(a) (1), (2), and (3), the Agency's 
district managers would have the power to suspend a person's 
certification for a finite period of time; permanently decertify the 
individual with no opportunity for reapplication; or allow the district 
manager to take any other appropriate action such as requiring the 
individual to undergo additional training or testing to retain his or 
her certification. This range of options would give the district 
manager authority to address each case in a manner that would be 
tailored to the facts presented by each case.
    For example, while the Agency has recently permanently decertified 
seven people after criminal convictions stemming from respirable dust 
fraud, 73 people have also been temporarily decertified for periods 
ranging from one to four years for respirable dust fraud. Additionally, 
two training instructors have been permanently decertified and one 
training instructor has been temporarily decertified for a three-year 
period. One person has been temporarily decertified to perform noise 
surveys for a two-year period and two individuals have been permanently 
decertified from performing noise surveys. One individual has been 
temporarily decertified as an approved electrical qualifications 
instructor for a two-year period. The above pleas or convictions, and 
related decertification actions, were the result of criminal charges 
for offenses ranging from the creation and/or submission of fraudulent 
respirable dust samples and cards, noise surveys, and training 
certificates, through conspiracy, mail fraud and charges under the 
Racketeer Influence Corrupt Organizations (RICO) statute.
    When the district manager determines that temporary decertification 
is appropriate under proposed Sec. 42.6(a)(1), MSHA contemplates that 
at the end of the suspension period the temporarily decertified person 
would not be automatically certified but would make application as any 
other person to obtain certification. He or she would be required to 
fulfill all procedural steps for certification, as well as any 
additional special conditions that the district manager might have 
imposed when the certified person was temporarily decertified. For 
example, if a certified person was temporarily decertified and allowed 
to reapply for certification pending the completion of certain 
training, the certified person would need to demonstrate that the 
training had been completed prior to reapplying for certification. MSHA 
has provided procedural guidance for recertification under proposed 
Sec. 42.10 of this rule.
    The proposed rule under Sec. 42.6(a)(2) would allow a district 
manager to order permanent decertification for any person who had shown 
evidence of a significant disregard for the health or safety of miners. 
For example, the Agency believes that egregious behavior, which may 
constitute a serious violation of safety and health regulations, 
exposes miners to unsafe or unhealthy conditions, and presents a clear 
disregard for the safety or health of miners, would warrant the 
sanction of permanent decertification. MSHA's aforementioned permanent 
decertifications to date have focused on such demonstrated behavior.
    The proposed rule under Sec. 42.6(b) (1) through (6) would require 
the administrative record to include certain information. The content 
of the administrative record is important in that it would give the 
certified person a basis for understanding the nature of the action 
being taken against him or her and would provide documentation of the 
evidence underlying the action. In addition, the district manager would 
have the ability to review all the relevant facts and information in 
the case before reaching a decision. This information would include the 
notes or transcript from any informational meeting which was held, as 
well as other relevant evidence. MSHA believes that other relevant 
evidence may include background information such as information on the 
mine or mines where the certified person worked; relevant 
correspondence between the district manager and the certified person 
concerning the decertification action; any relevant documentary 
evidence such as certification papers, or certification examinations; 
possible district investigation reports on the actions of the certified 
person; and any witness statements which were made as part of the 
informational meeting or submitted separately to the district manager. 
Within 30 calendar days after the close of the administrative record, 
the district manager would review and evaluate all submissions to the 
record, and send a written decision to the certified person informing 
him or her of the results of the district manager's review.
    Proposed Sec. 42.6(c) would require that the district manager's 
decision be in writing and include certain information. The district 
manager's written decision would inform the certified person of the 
district manager's conclusions. For example, the letter may state that 
the record contains information which refutes the allegations in the 
notice of proposed action, and that the matter has been closed. The 
decision could contain a description of the remedial action that the 
certified person must take in order to retain his or her certification. 
Finally, the decision could also serve as a notice of temporary 
decertification, with time limits and conditions for re-certification, 
or as a notice of permanent decertification, if such a result were 
warranted by the evidence.
    The proposed rule would require that the district manager's written 
decision detail the specific facts which provide the basis for the 
decertification action, and include a clear and concise statement of 
the reasons for the decision reached by the district manager. The 
proposed rule would also provide that the decision would contain 
notification of the certified person's right to appeal any adverse 
decision to the administrator under Sec. 42.6(c)(3). Section 42.6(c)(4) 
would also require that the district manager's decision contain a 
statement that the administrative record is available for review at the 
MSHA district office, and that the certified person may obtain a copy 
upon request. Because certain appeal rights may attach, MSHA is 
proposing under Sec. 42.6(d) that the Agency would send the decision by 
certified mail, return receipt requested. The decision would be 
effective 15 calendar days after receipt by the certified person, 
unless it is appealed.

Section 42.7  Appeal to the Administrator

    Proposed Sec. 42.7 would allow a certified person to appeal an 
adverse decision of temporary or permanent decertification or other 
remedial action ordered by the district manager to the appropriate MSHA 
Administrator for Coal Mine Safety and Health or Metal/Nonmetal Mine 
Safety and Health. This appeal would be required to be submitted in 
writing.
    Specifically, proposed Sec. 42.7(a) would allow a certified or 
qualified person to appeal, in writing, the decision of the district 
manager to the appropriate MSHA administrator. The administrator must 
receive this appeal within 15 calendar days from the individual's 
receipt of the certified letter containing the district manager's 
decision notice ordering remedial action, or temporary or permanent 
decertification.
    Upon receipt of the written appeal, the administrator would send 
written acknowledgment of the appeal to the certified person, including 
an acknowledgment of an automatic stay of the remedial action or 
temporary or permanent decertification. The stay would remain in effect 
pending the outcome of the appeal under proposed Sec. 42.7(b) (1) and 
(2), and would allow a certified person to retain certification until 
the administrator reached a decision in the matter. MSHA believes that 
an automatic stay would be appropriate because the matter would still 
be under consideration by the Agency. The decision by the administrator 
would not be reached until after the administrator has had the 
opportunity to review the record and make a decision.
    Under Sec. 42.7(b)(3) of the proposal, the district office would be 
required to forward a copy of the administrative record to the 
administrator.
    In addition, the proposal would allow the certified person to 
request a meeting with the administrator under proposed 
Sec. 42.7(b)(4). Such a meeting must be requested by the certified 
person within 15 days of the certified person's receipt of the 
administrator's written acknowledgment of the appeal. When such a 
meeting is requested by the certified person, MSHA intends that the 
administrator would be permitted to consider evidence in addition to 
that presented to and considered by the district manager. MSHA intends 
that this subsection would allow the certified person to submit 
relevant information to the administrator in lieu of a face-to-face 
meeting.
    Proposed Sec. 42.7(c) would provide the administrator with a time 
limit of 30 days to issue a written decision after either his or her 
receipt of the administrative record and district manager's decision, 
or 30 days after his or her meeting with the certified person. MSHA 
believes that this is a reasonable amount of time for the administrator 
to review the evidence and issue a reasoned decision. In some 
instances, post-meeting submissions to the administrator may extend the 
time to issue a written decision.
    Section 42.7(c) (1) and (2) would provide that the administrator 
would have several possible options after his or her evaluation of all 
of the evidence. The administrator could issue a decision that upholds 
the decision of the district manager, and in such a case the remedial 
action or temporary or permanent decertification would become effective 
30 days after receipt by the certified person except as provided in 
Sec. 42.8(e). The administrator could also issue a decision overturning 
the district manager's decision. Finally, the administrator may also 
refer the matter back to the district manager with appropriate 
instructions, based on the receipt of new evidence or information that 
was not available to, or considered by, the district manager at the 
time that his or her decision was rendered.
    Proposed Sec. 42.7(d) would require that the written decision 
contain a clear statement of the basis for the decision, including 
specific references to the evidence contained in the record that was 
considered in arriving at the determination. The written decision would 
be served upon the certified person by certified mail, return receipt 
requested.
Section 42.8  Hearing Before an Administrative Law Judge

    Because the individual who is temporarily or permanently 
decertified may suffer a reduction in pay and possibly loss of his or 
her livelihood, the issue of due process for such individuals is a 
central concern of this rulemaking. MSHA is therefore committed to 
providing meaningful procedural safeguards at an appropriate level of 
due process. Morrisey v. Brewer, 408 U.S. 471 (1972). Thus, MSHA's 
multi-level review scheme within the Agency incorporating informal pre-
decertification proceedings such as a notice of charges, explanation of 
the evidence, and an opportunity for the certified person to present 
``his side of the story'' should be sufficient to satisfy the test of 
``what process is due'' when the informal pre-decertification 
proceedings are followed by a full post-decertification evidentiary 
hearing. Cleveland Board of Education v. Loudermill, 470 U.S. 532 
(1985). MSHA has carefully considered whether a certified person should 
get a formal pre-decertification evidentiary hearing. At this point in 
the rulemaking process, MSHA believes that the procedural due process 
safeguards proposed here are adequate under the requirements of the 
United States Constitution.
    In addition, MSHA believes that the potential harm to miner health 
and safety which may result from protracted pre-decertification 
litigation is an issue which must be carefully considered. Therefore, 
under proposed Sec. 42.8(a)(1), a person whose temporary or permanent 
decertification has been upheld by the administrator may obtain a de 
novo hearing before the Office of Administrative Law Judges, United 
States Department of Labor, by filing a request for a hearing with the 
administrator within 30 calendar days after receipt of the 
administrator's decision. The administrator would refer the request for 
hearing, along with the district manager's decision, and the 
administrator's decision to the Office of Administrative Law Judges 
within 10 calendar days of receipt of the hearing request.
    The starting date of the temporary or permanent decertification 
would not be affected by the certified person's decision to obtain a 
post-decertification hearing. The temporary or permanent 
decertification would be effective 30 days after the certified person's 
receipt of the administrator's decision, except as provided in proposed 
Sec. 42.8(e).
    The request for a hearing under 42.8(a)(2) would include a summary 
of the issues involved and the specific objections that the certified 
person has to the administrator's decision.
    Under proposed Sec. 42.8(c), the administrative law judge assigned 
to hear the case would expedite the hearing of the case because of the 
possibility that temporary or permanent decertification may 
significantly impair the certified person's livelihood. In addition to 
expediting the hearing, the administrative law judge would render his 
or her final decision in the case within 45 days of the close of the 
record.
    Proposed Sec. 42.8(d) would provide that decertification hearings 
before the Department of Labor Office of Administrative Law Judges 
would be governed by the rules of practice and procedure for hearings 
before the Office of Administrative Law Judges at 29 CFR part 18.
    Under proposed Sec. 42.8(e), a request for a stay would be filed 
within 30 calendar days after receipt of the administrator's decision. 
The request for a stay would automatically stay the administrator's 
decision until the administrative law judge could rule on the stay 
request. The automatic stay would allow the administrative law judge 
sufficient time to obtain jurisdiction to rule on the request for a 
stay, and it would allow the status of the certified person to remain 
unchanged until the stay request was decided by the administrative law 
judge.
    In determining whether to grant a stay, the proposal would require 
under Sec. 42.8(f) that the administrative law judge would be required 
to consider the certified person's likelihood of success on the merits, 
and the potential harm to mine safety and health if the certified 
person were allowed to continue his or her work during the pendency of 
the case before the administrative law judge. The administrative law 
judge would also be required to clearly state the reasons for the 
granting or denial of a stay in any subsequent order concerning the 
granting or denial of the stay.
    MSHA envisions that a decision of the case rendered by an 
administrative law judge could then be appealed to the appropriate 
United States Court of Appeals. In the Mine Act, the Congress 
established a scheme whereby judicial review of all record-based Agency 
determinations is available only in the courts of appeal. After fully 
examining this statutory review scheme, MSHA believes that all judicial 
review of Secretarial action under the Mine Act lies exclusively in the 
courts of appeal, whether such review is specifically provided or 
whether the Mine Act is silent as to judicial review. See, Bituminous 
Coal Operators' Ass'n. v. Marshall, 82 F.R.D. 350 (D.D.C. 1979).

Section 42.9  Notice of Decertification.

    After a decision to temporarily or permanently decertify an 
individual becomes final, the district manager would immediately 
notify, in writing, the mine operator or operators for whom the 
certified person performs such work that he or she has been temporarily 
or permanently decertified. The district manager would also notify the 
appropriate Coal Mine Safety and Health or Metal and Nonmetal Mine 
Safety and Health Technical Compliance and Investigation Division 
(TCID) and the Qualification and Certification Unit of MSHA. The TCID 
would notify other district offices of the temporary or permanent 
decertification so that all districts would be aware of the change in 
status of the certified person.
Section 42.10  Recertification

    A person who has been temporarily decertified may apply for 
recertification by MSHA after the end of the temporary decertification 
period. To obtain recertification, the person must fulfill the 
requirements for certification or qualification as required under the 
applicable regulations before a new certification or qualification is 
issued. In addition, if the district manager, administrator or 
administrative law judge imposed additional requirements for 
recertification beyond the basic application, the certified person must 
also show that those requirements have been fulfilled. MSHA intends 
that applications for recertification would be forwarded by the 
Qualification and Certification Unit to the Technical Compliance and 
Investigation Division, which is responsible for coordinating those 
cases involving revocation of certification. By transferring cases 
involving decertification from the district offices to a single 
administrative office, the Agency would eliminate the likelihood that a 
person whose certification is suspended or revoked could become 
recertified without fulfilling the necessary requirements.

IV. Executive Order 12866 and the Regulatory Flexibility Act

    The analysis contained in this preamble meets the Agency's 
responsibilities under Executive Order 12866 and the Regulatory 
Flexibility Act. Under Executive Order 12866, MSHA has made a 
preliminary assessment of the costs and benefits of the proposed rule. 
The proposed rule does not meet the criteria of a significant 
regulatory action and, therefore, MSHA has not prepared a separate 
analysis of costs and benefits.
    The Executive Order also requires Federal agencies to seek the 
views of State governments on regulatory actions that would affect 
them. MSHA intends to work closely with the States that have 
certification programs to coordinate implementation of this proposal. 
The Regulatory Flexibility Act requires MSHA to consider the proposed 
rule's impact on small entities. MSHA defines small entities as mines 
with 20 or fewer employees. This proposal would not have a significant 
economic impact on a substantial number of such small mines.
    The proposal addresses procedures for decertifying individuals, 
either temporarily or permanently, who have failed to maintain the 
knowledge and skills required to perform certain tasks or duties of an 
``approved,'' ``certified'' or ``qualified'' person or who have failed 
to comply with the law in their role as an approved, certified or 
qualified person. Any costs associated with the requirement that an 
individual be certified to perform a specific task or duty are not 
included in this analysis. Such costs are attributed to the Agency's 
existing certification requirements, and this rule does not impose any 
new such requirements.
    MSHA estimates that about 105,000 individuals have been certified 
by the Agency to perform required procedures. Many of these individuals 
have been certified in more than one area. In addition, MSHA estimates 
that about 20,000 mine foremen have been certified by State 
governments.
    It is clear from MSHA's enforcement experience that some certified 
persons do not adhere to the Agency's requirements. Therefore, the 
proposed rule establishes procedures for temporary or permanent 
decertification of such individuals.
    MSHA has not attributed any costs to the pay loss or potential loss 
of employment a certified person faces if Agency action ultimately 
leads to that individual's decertification. Such costs result from the 
individual's failure to follow Federal requirements, which in many 
instances could potentially endanger other miners. As such, these costs 
are far outweighed by no longer allowing the individual to jeopardize 
the safety and health of other miners. For the certified person, these 
losses would occur from the loss of pay differential or ultimately the 
loss of employment. For the mine operator, these losses might range 
from the cost of retraining the individual to significant lost 
production if the operator cannot readily replace someone who has been 
decertified. In order for the mine to continue production after MSHA 
has decertified an individual, the mine operator would need to hire a 
replacement who has the proper certification or qualification or have 
one of the more experienced miners achieve certification or 
qualification status.
    MSHA has not attempted to calculate the financial losses that might 
accrue should an Agency decertification action ultimately be overturned 
on appeal or if an individual convinces the district manager that 
decertification action in not warranted. At this time, MSHA is unable 
to estimate how many such cases would occur.
    MSHA anticipates that the majority of actions under the proposed 
rule would begin with a letter from the MSHA district manager to the 
certified person warning that the person's conduct in performing 
certain tasks is deficient. As proposed, the warning letter may or may 
not require that remedial measures be undertaken by the individual.
    MSHA estimates that it would issue about 50 warning letters each 
year for the first few years--about half of which would require some 
remedial action such as passing a skills test or undergoing retraining. 
Of the 50 warning letters each year, MSHA estimates that about 20 would 
be issued to mine foremen who must be certified to perform various 
inspection and examination activities, about 25 would be issued for 
coal dust sampling and 5 would be issued to miners certified to perform 
such activities as electrical work or blasting. After the first few 
years, MSHA anticipates that the Agency would need to issue fewer 
warning letters as mine operators and certified individuals become more 
aware of the Agency's intent to ensure that these individuals perform 
their tasks as required.
    The proposed rule also would allow the district manager to forego 
the warning letter and send out a notice proposing to temporarily or 
permanently decertify an individual who repeatedly exhibits disregard 
for health and safety, and also in instances where a particular single 
offense is of such a serious nature that decertification is warranted. 
MSHA estimates that the Agency annually would issue about 10 temporary 
and 10 permanent decertifications without first issuing a warning 
letter. MSHA expects that temporary decertifications would last an 
average of one year and would require the individual to reapply for 
certification and, perhaps, complete additional requirements, such as 
retraining or testing. In all, MSHA estimates that the Agency would 
undertake in total about 70 decertification-related actions a year (50 
actions beginning with a warning letter and 20 actions without a 
warning letter).
    MSHA has attributed most of the costs of this proposal to legal 
fees. In many instances, MSHA expects that the certified persons facing 
adverse Agency action would hire an attorney. The costs of such legal 
fees would vary widely depending on the nature of the action, the level 
to which the case is appealed, and the legal fees of the attorney. 
Although a few individuals may not seek legal counsel, others might 
retain an attorney upon the initial receipt of a warning letter. In 
some instances, the attorney's services would not be needed beyond the 
initial response to the district manager. In other instances, in-depth 
legal advice may be sought at each level of appeal all the way through 
the Federal Court of Appeals. In general, however, MSHA believes that 
most individuals would not pursue appeal beyond the level of the 
Department of Labor's Administrative Law Judges. MSHA estimates that 
initially about 30 percent of the 70 actions taken by the Agency each 
year (or 21 individual cases) would result in appeals to the 
Departmental level. Legal fees vary from region to region and law firm 
to law firm, ranging from as high as $400 per hour to as low as $50 per 
hour. In this analysis, MSHA has used an average cost of $120 per hour. 
Assuming it takes an attorney about 40 hours to prepare and appeal a 
client's case up through the Departmental level, costs of the proposed 
rule arising from legal fees would total about $100,800 a year, or 
$4,800 per contest. Of course, the fees for appealing a single case 
through the Federal Court of Appeals may total significantly more than 
$4,800. Conversely, the use of an attorney to draft a response to the 
district manager to a warning letter could cost as little as $50.
    In addition, MSHA has assumed that the certified person would have 
to take time off from work to address decertification actions initiated 
by the Agency. The average total compensation (wages plus fringe 
benefits) for a certified person ranges from $24.74 to $28.50 per hour 
or an average of $26.50 per hour. Assuming that all 70 certified 
persons each takes an average of 20 hours off from work to avail 
themselves of the procedures of the proposal, then the annual loss of 
income attributable to responding to Agency's actions under the 
proposal would total about $37,100.
    MSHA estimates that the total annual cost of this proposed rule to 
be about $137,900 ($100,800 related to legal fees and $37,100 related 
to income loss during the appeal process). The Agency specifically 
requests comments concerning these cost estimates; comments, including 
rationale, should be as specific as possible.
    Although MSHA does not have data at this time to estimate 
quantitative benefits, the Agency has determined that the qualitative 
benefits of this proposed rule are improved safety and health 
conditions for miners. The possibility of a temporary or permanent 
decertification should be an effective incentive for certified and 
qualified persons to perform their duties and tasks as required. The 
potential loss of pay or possible unemployment resulting from 
decertification should serve as a strong, economic incentive for 
certified persons to comply with the required procedures. As the tasks 
and duties of certified persons are critical to the safety and health 
of miners, ensuring that these activities are performed in the required 
manner should result in fewer fatalities, injuries, and accidents.
    A recent example of the need for formal decertification procedures 
involves the submission of fraudulent respirable coal mine dust samples 
by some individuals certified to take them. To ensure the integrity of 
the respirable dust program, the Agency needs more efficient 
decertification procedures to serve as a more effective deterrent to 
such illegal activities.
    As a result of plea agreements or criminal convictions stemming 
from respirable dust fraud, MSHA has permanently decertified 7 people 
and temporarily decertified another 73 individuals for periods ranging 
from one to four years for respirable dust fraud. The Agency 
temporarily decertified about sixty-five percent of these individuals 
for a one-year period and about thirty percent for a three-year period.
    Additionally, as the result of recent investigations, MSHA has 
permanently decertified two training instructors and temporarily 
decertified one training instructor for a three-year period. As a 
result of continuing criminal proceedings, the Agency also temporarily 
decertified for a two-year period one person who performed noise 
surveys and permanently decertified two individuals who performed noise 
surveys. MSHA temporarily decertified for a two-year period another 
individual who was an approved electrical qualifications instructor.

List of Subjects in 30 CFR Parts 42, 48, 70, 71, 75, 77 and 90

    Decertification, Mine safety and health.

    Dated: October 26, 1994.
J. Davitt McAteer,
Assistant Secretary for Mine Safety and Health.
    For the reasons set out in the preamble, it is proposed to amend 30 
CFR chapter I as follows:
    1. A new part 42 is added to read as follows:

PART 42--DECERTIFICATION OF APPROVED INSTRUCTORS AND CERTIFIED AND 
QUALIFIED PERSONS

Sec.
42.1  Purpose and scope.
42.2  Definitions.
42.3  Warning letter.
42.4  Notice of proposed action.
42.5  Informational meeting.
42.6  Notice of district manager's decision.
42.7  Appeal to the administrator.
42.8  Hearing before an administrative law judge.
42.9  Notice of decertification.
42.10  Recertification.

    Authority: 30 U.S.C. 811.


Sec. 42.1  Purpose and scope.

    This part establishes the criteria and procedures for suspension or 
revocation of the authority given to individuals to perform certain 
tasks or duties that must be done by an approved instructor, or a 
certified or qualified, person. These procedures apply to all persons 
recognized by MSHA as certified, qualified, or approved under chapter I 
of this title.


Sec. 42.2   Definitions.

    The following definitions apply in this part:
    Administrator. MSHA's Administrator for Coal Mine Safety and Health 
or Administrator for Metal and Nonmetal Mine Safety and Health, as 
appropriate.
    Certified. To be certified, qualified, or approved in accordance 
with the requirements of MSHA regulations, either directly or through a 
State program recognized by MSHA, to perform tasks or duties for which 
this chapter requires such specific authority. Similarly, certification 
means certification, qualification, or approval.
    Decertify. To temporarily or permanently revoke a person's 
certification, qualification, or approval. If MSHA recognizes a 
person's certification by a State, then decertify means that MSHA will 
no longer recognize that person's State certification for purposes of 
compliance with this chapter. Decertification means temporary or 
permanent revocation of a person's certification, qualification, or 
approval.


Sec. 42.3   Warning letter.

    (a) If a certified or qualified person or approved instructor fails 
to follow the procedures set by this chapter for performing a task or 
duty requiring certification or qualification, or the person no longer 
meets the requirements to retain his or her certification or 
qualification or status as an approved instructor, or the certified 
person's conduct leads to, or contributes to the violation of any 
training, safety or health standard, the district manager may send a 
warning letter to that person in writing by certified mail, return 
receipt requested.
    (b) The warning letter shall state--
    (1) That the certified or qualified person or approved instructor 
is receiving a warning letter of deficient conduct in performing 
certain tasks or duties pertaining to his or her certification, 
qualification or approval, and that further deficient conduct may lead 
to other action by MSHA; and
    (2) Any remedial action that must be initiated by the certified or 
qualified person or approved instructor to retain his or her status.
    (3) The certified or qualified person or approved instructor shall 
have 15 days from the date of receipt of the warning letter to respond 
to the district manager or begin remedial action as stated in the 
letter.


Sec. 42.4  Notice of proposed action.

    (a) When the district manager has reason to believe that a 
certified person's conduct has led to, or contributed to a violation of 
training, safety or health standards, or that the certified person has 
failed to respond or deficiently responded to a requirement made by the 
district manager under Sec. 42.3, the district manager may notify that 
person in writing by certified mail, return receipt requested, that--
    (1) The certification, qualification or approval which the person 
presently holds is proposed to be temporarily suspended; or
    (2) The certification, qualification or approval which the person 
presently holds is proposed to be permanently revoked.
    (b) The notice of proposed action shall state--
    (1) The performance required by the person under the applicable 
regulations;
    (2) How the individual failed to comply with the regulations; or
    (3) How the individual failed to adequately fulfill his or her 
responsibilities as an approved instructor or certified or qualified 
person.
    (c) The notice shall give the certified person 15 calendar days 
from the date of its receipt to submit information to or request an 
informational meeting with the district manager to discuss the 
circumstances which prompted the issuance of the notice. The notice 
shall state that if the person does not respond within the allotted 
time, the administrative record of the matter will close and MSHA may 
take action including, but not limited to, temporary decertification or 
permanent decertification.


Sec. 42.5  Informational meeting.

    (a) If the certified person requests an informational meeting with 
the district manager under Sec. 42.4(c), the district manager or the 
district manager's representative shall hold such a meeting within 15 
calendar days of receipt of the person's request.
    (b) At the informational meeting, the district manager shall--
    (1) State the issues identified in the notice of proposed action;
    (2) State whether temporary or permanent decertification is under 
consideration and the information supporting such proposed action;
    (3) Provide an opportunity for the person to present evidence or 
witnesses to substantiate his or her position;
    (4) Notify the certified person of the anticipated date of the 
district manager's final decision;
    (5) Notify the certified person of the right to appeal any adverse 
decision rendered under Sec. 42.6; and,
    (6) Notify the person that the administrative record will remain 
open for 15 calendar days after the meeting date for the submission of 
additional information.
    (c) The district manager or designee shall keep a detailed record 
of the meeting and make it a part of the administrative record for the 
action.


Sec. 42.6   Notice of district manager's decision.

    (a) The district manager shall issue a decision on whether to 
temporarily or permanently decertify, or take other appropriate action 
against a certified person within 30 calendar days after the close of 
the administrative record. This decision shall be based on a thorough 
evaluation of the entire administrative record. The district manager 
may--
    (1) Temporarily decertify the person for a specific period of time;
    (2) Permanently decertify the person; or
    (3) Take any other action appropriate to the circumstances based on 
the evidence in the administrative record.
    (b) The administrative record shall include the following:
    (1) Background information.
    (2) Relevant correspondence between the district manager and the 
certified person.
    (3) Relevant documentary evidence.
    (4) Relevant district investigation reports.
    (5) Notes or transcripts of any informational meeting.
    (6) Witness statements.
    (c) The district manager's decision shall be in writing and shall 
contain the following information:
    (1) A statement of the decision.
    (2) A summary of the information supporting the decision or action.
    (3) Notification of the certified person's right to appeal the 
decision to the administrator if the decision involves an adverse 
action against the certified person.
    (4) A statement that the administrative record is available for 
review at the district office and that a copy is available upon 
request.
    (d) The decision shall be sent to the certified person by certified 
mail, return receipt requested, and shall become effective 15 calendar 
days after it is received, unless appealed to the administrator under 
Sec. 42.7.


Sec. 42.7   Appeal to the administrator.

    (a) A person subject to temporary or permanent decertification 
under Sec. 42.6 may appeal the district manager's decision to the 
appropriate administrator. The appeal shall be filed in writing with 
the administrator within 15 calendar days of the certified person's 
receipt of the decision.
    (b) Upon receipt of the appeal, the administrator shall--
    (1) Acknowledge in writing the receipt of the certified person's 
appeal;
    (2) Stay the district manager's decision pending the outcome of the 
appeal to the administrator;
    (3) Obtain a copy of the administrative record and the district 
manager's decision from the appropriate district manager; and
    (4) Notify the certified person that within 15 days of receipt of 
the letter that he or she may request a meeting with the administrator.
    (c) Within 30 calendar days after receiving the administrative 
record and district manager's decision, or after holding a meeting with 
the certified person if one is requested, the administrator shall--
    (1) Issue a written decision based on the record compiled by the 
district manager and any new information received; or
    (2) Refer the matter back to the district manager for 
reconsideration based on the receipt of new information.
    (d) The administrator's decision shall contain a statement of the 
factual basis for the decision, including specific references to the 
evidence that was considered in arriving at the decision.
    (e) The administrator's decision shall be sent to the person by 
certified mail, return receipt requested, and shall be effective 30 
days after receipt, except as provided in Sec. 42.8(e).


Sec. 42.8  Hearing before an administrative law judge.

    (a) A person whose temporary or permanent decertification has been 
affirmed by the administrator may request a de novo hearing before the 
Office of Administrative Law Judges, U.S. Department of Labor.
    (1) The request shall be filed with the administrator within 30 
calendar days after receipt of the administrator's decision.
    (2) The request shall include a concise summary of the certified 
person's position on the issues of fact or law desired to be raised, 
including specific objections to the administrator's decision.
    (b) Within 10 calendar days of receipt of a request for hearing, 
the administrator shall refer to the Chief Administrative Law Judge the 
district manager's decision, the administrator's decision, and the 
certified person's request for a hearing.
    (c) To the extent possible, any hearing shall be expedited by the 
administrative law judge, and the final decision of the administrative 
law judge shall be issued within 45 days after the close of the record.
    (d) Hearings before an administrative law judge shall be governed 
by the rules of procedure under 29 CFR Part 18--Rules of Practice and 
Procedure for Administrative Hearings Before the Office of 
Administrative Law Judges.
    (e) A request for a stay shall be filed within 30 calendar days 
after receipt of the administrator's decision. Any request for a stay 
filed with the administrative law judge will automatically stay the 
administrator's decision until the administrative law judge rules on 
the stay request.
    (f) In determining whether to grant a stay of the administrator's 
decision, the administrative law judge shall consider the certified 
person's likelihood of success on the merits, and the potential harm to 
mine safety and health if the certified person remains certified during 
the pendency of the appeal. The administrative law judge shall state 
how such factors were weighed in any order granting or denying such a 
stay.
    (g) Any party may appeal the final decision of the administrative 
law judge to the United States Court of Appeals for the District of 
Columbia Circuit or the circuit where the miner resides.


Sec. 42.9  Notice of decertification.

    If a person is temporarily or permanently decertified, MSHA shall 
send a copy of the final decision to the operator of any mine affected 
by the person's activities.


Sec. 42.10  Recertification.

    (a) To obtain recertification, a person who has been temporarily 
decertified under the procedures of this part shall--
    (1) Reapply for certification after a period established by the 
district manager in the initial decision, or by the administrator or 
administrative law judge on subsequent appeal; and
    (2) Satisfy the applicable certification requirements under chapter 
I of this title; and
    (3) Provide any required documentation that additional requirements 
for recertification imposed by the district manager, administrator or 
administrative law judge have been fulfilled.
    (b) Applications for recertification shall be submitted to the 
Chief, Technical Compliance and Investigation Division, Mine Safety and 
Health Administration, 4015 Wilson Boulevard, Arlington, VA 22203.

PART 48--[AMENDED]

    2. The authority citation for part 48 continues to read as follows:

    Authority: 30 U.S.C. 811 and 825.

    3. Section 48.3 is amending by revising the section heading and 
paragraph (i) to read as follows:


Sec. 48.3  Training plans; time of submission; where filed; information 
required; time for approval; method for disapproval; commencement of 
training; approval of instructors; decertification of instructors.

* * * * *
    (i) Instructors may have their approval revoked by MSHA for good 
cause which may include not teaching a course at least once every 24 
months. Any person approved as a training instructor shall be subject 
to the decertification procedures under part 42 of this chapter.
* * * * *
    4. Section 48.23 is amended by revising the section heading and 
paragraph (i) to read as follows:


Sec. 48.23  Training plans; time of submission; where filed; 
information required; time for approval; method for disapproval; 
commencement of training; approval of instructors; decertification of 
instructors.

* * * * *
    (i) Instructors may have their approval revoked by MSHA for good 
cause which may include not teaching a course at least once every 24 
months. Any person approved as a training instructor shall be subject 
to the decertification procedures under part 42 of this chapter.
* * * * *

PART 70--[AMENDED]

    5. The authority citation for part 70 continues to read as follows:

    Authority: 30 U.S.C. 811 and 813(h).

    6. Section 70.202 is amended by adding a new paragraph (d) to read 
as follows:


Sec. 70.202  Certified person; sampling.

* * * * *
    (d) Any person certified to conduct respirable dust sampling shall 
be subject to the decertification procedures under part 42 of this 
chapter.
    7. Section 70.203 is amended by adding a new paragraph (d) to read 
as follows:


Sec. 70.203  Certified person; maintenance and calibration.

* * * * *
    (d) Any person certified to maintain and calibrate approved 
sampling devices shall be subject to the decertification procedures 
under part 42 of this chapter.
    8. Section 70.504-1 is amended by adding a new paragraph (d) to 
read as follows:


Sec. 70.504-1  Persons qualified to measure noise exposures; minimum 
requirements.

* * * * *
    (d) Any person qualified to take noise exposure measurements shall 
be subject to the decertification procedures under part 42 of this 
chapter.
    9. Section 70.504-2 is revised to read as follows:


Sec. 70.504-2  Certification of qualified persons.

    (a) Upon a satisfactory showing that a person has met the minimum 
requirements for taking noise exposure measurements set forth in 
Sec. 70.504-1, MSHA shall certify that the person has the ability and 
capacity to conduct tests of the noise exposure in a coal mine and to 
report and certify the results of such tests to the Secretary and the 
Secretary of Health and Human Services.
    (b) Any person certified to conduct tests of the noise exposure in 
a coal mine and to report and certify the results of such tests to the 
Secretary and the Secretary of Health and Human Services shall be 
subject to the decertification procedures under part 42 of this 
chapter.

PART 71--[AMENDED]

    10. The authority citation for part 71 continues to read as 
follows:

    Authority: 30 U.S.C. 811 and 813(h).

    11. Section 71.202 is amended by adding a new paragraph (d) to read 
as follows:


Sec. 71.202  Certified person; sampling.

* * * * *
    (d) Any person certified to conduct respirable dust sampling shall 
be subject to the decertification procedures under part 42 of this 
chapter.
    12. Section 71.203 is amended by adding a new paragraph (d) to read 
as follows:


Sec. 71.203  Certified person; maintenance and calibration.

* * * * *
    (d) Any person certified to maintain and calibrate approved 
sampling devices shall be subject to the decertification procedures 
under part 42 of this chapter.

PART 75--[AMENDED]

    13. The authority citation for part 75 continues to read as 
follows:

    Authority: 30 U.S.C. 811, 957, and 961.

    14. Section 75.100 is amended by adding a new paragraph (d) to read 
as follows:
Sec. 75.100  Certified person.

* * * * *
    (d) Any person certified to perform certain examinations and tests 
under the provisions of subpart D of this part shall be subject to the 
decertification procedures under part 42 of this chapter.
    15. Section 75.150 is amended by adding a new paragraph (c) to read 
as follows:
Sec. 75.150  Tests for methane and for oxygen deficiency; qualified 
person.

* * * * *
    (c) Any person qualified to perform tests for methane and for 
oxygen deficiency shall be subject to the decertification procedures 
under part 42 of this chapter.
    16. Section 75.153 is amended by adding a new paragraph (h) to read 
as follows:


Sec. 75.153  Electrical work; qualified person.

* * * * *
    (h) Any person qualified under this section to perform electrical 
work shall be subject to the decertification procedures under part 42 
of this chapter.
    17. Section 75.154 is revised to read as follows:


Sec. 75.154  Repair of energized surface high voltage lines; qualified 
person.

    (a) An individual is a qualified person within the meaning of 
Sec. 75.705 for the purpose of repairing energized surface high-voltage 
lines only if the individual has had at least 2 years experience in 
electrical maintenance, and at least 2 years experience in the repair 
of energized high-voltage lines located on poles or structures.
    (b) Any individual qualified for the purpose of repairing energized 
surface high voltage lines shall be subject to the decertification 
procedures under part 42 of this chapter.
    18. Section 75.155 is amended by adding a new paragraph (d) to read 
as follows:


Sec. 75.155  Qualified hoisting engineer; qualifications.

* * * * *
    (d) Any person qualified as a hoisting engineer shall be subject to 
the decertification procedures under part 42 of this chapter.
    19. Section 75.1915 as added in the proposed rule of October 4, 
1989 (54 FR 40995) is amended by adding a new paragraph (f) to read as 
follows:


Sec. 75.1915  Training and qualification of diesel mechanics.

* * * * *
    (f) Any person qualified as a diesel mechanic shall be subject to 
the decertification procedures under part 42 of this chapter.

PART 77--[AMENDED]

    20. The authority citation for part 77 continues to read as 
follows:

    Authority: 30 U.S.C. 811, 957, 961.

    21. Section 77.100 is amending by adding a new paragraph (c) to 
read as follows:


Sec. 77.100  Certified person.

* * * * *
    (c) Any person certified to perform certain examinations and tests 
under this part shall be subject to decertification under part 42 of 
this chapter.
    22. Section 77.101 is amended by adding a new paragraph (c) to read 
as follows:


Sec. 77.101  Tests for methane and for oxygen deficiency; qualified 
person.

* * * * *
    (c) Any person qualified to perform tests for methane and oxygen 
deficiency shall be subject to decertification under part 42 of this 
chapter.
    23. Section 77.103 is amended by adding a new paragraph (h) to read 
as follows:


Sec. 77.103  Electrical work; qualified person.

* * * * *
    (h) Any person qualified under this section to perform electrical 
work shall be subject to decertification under part 42 of this chapter.
    24. Section 77.104 is revised to read as follows:


Sec. 77.104  Repair of energized surface high voltage lines; qualified 
person.

    (a) An individual is a qualified person within the meaning of 
Sec. 77.704 for the purpose of repairing energized surface high-voltage 
lines only if the individual has had at least 2 years experience in 
electrical maintenance, and at least 2 years experience in the repair 
of energized high-voltage lines located on poles or structures.
    (b) Any individual qualified for the purpose of repairing energized 
surface high-voltage lines shall be subject to decertification under 
part 42 of this chapter.
    25. Section 77.105 is amended by adding a new paragraph (c) to read 
as follows:


Sec. 77.105  Qualified hoistman; slope or shaft sinking operation; 
qualifications.

* * * * *
    (c) Any person qualified as a hoistman shall be subject to 
decertification under part 42 of this chapter.
    26. Section 77.216-3 is amended by adding a new paragraph (h) to 
read as follows:


Sec. 77.216-3  Water, sediment, or slurry impoundments and impounding 
structures; inspection requirements; correction of hazards; program 
requirements.

* * * * *
    (h) Any person qualified to inspect water, sediment, or slurry 
impoundments shall be subject to decertification under part 42 of this 
chapter.

PART 90--[AMENDED]

    27. The authority citation for part 90 is revised to read as 
follows:

    Authority: 30 U.S.C. 811 and 813(h).

    28. Section 90.202 is amended by adding a new paragraph (d) to read 
as follows:


Sec. 90.202  Certified person; sampling.

* * * * *
    (d) Any person certified to conduct respirable dust sampling shall 
be subject to decertification under part 42 of this chapter.
    29. Section 90.203 is amended by adding a new paragraph (d) to read 
as follows:


Sec. 90.203  Certified person; maintenance and calibration.

* * * * *
    (d) Any person certified to maintain and calibrate approved 
sampling devices shall be subject to decertification under part 42 of 
this chapter.

[FR Doc. 94-27117 Filed 11-1-94; 8:45 am]
BILLING CODE 4510-43-P