Decertification of Approved Instructors and Certified and Qualified Persons

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