[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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