INTRODUCTION TO SPECIAL INVESTIGATIONS

COURSE GOALS

• UNDERSTAND WHAT SPECIAL INVESTIGATORS (SI) DUTIES ARE

• UNDERATAND WHY THE INFORMATION YOU PROVIDE THE SI IS IMP0RTANT

COURSE TOPICS

• 105 (c), (105 (c)(1), (c)(2), (c)(3))

• 110 (a), (b), (c), (d), (e), (f), (g), and (h)

• 111

105(c) Discrimination Complaints

• Not covered– race– sex– age– religion– handicap

105(c) Discrimination - Examples

• Filing a 104(g) Complaint

• Instituting proceedings under the Act

• Being the subject of medical transfer under Section 101

• Enforcement under Sections 104(g) and 115

105(c) Discrimination - Examples

• Refusal to work in unsafe or unhealthy conditions

• Exercising any rights afforded by the Act

105(c) Discriminatory Acts

• Discharge, termination, or laying off

• Demotion

• Refusal of employment

• Reduction in benefits, vacation, bonuses, or rate of pay

105(c) Discriminatory Acts - continued

• Change in pay and hours of work

• Threats of reprisal

• Interference with exercise of rights

• Transfer at less that regular pay

105(c) Filing a Complaint

• At any MSHA office

• Black Lung office

• Two persons must be qualified in each office

SECTION 105(c)(1)

• No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any miner, representatives of miners or applicant for employment in any coal of other mine subject to this Act because such miner, representatives of miners or applicant for employment has filed or

SECTION 105(c)(1) (continued)• made a complaint under or related to this

Act, including a complaint notifying the operator or the operator’s agent, or the representative of the miners at the coal or other mine of an alleged danger or safety or health violation in a coal or other mine, or because such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential

SECTION 105(c)(1) (continued)• transfer under a standard published pursuant

to section 101 or because such miner, representative of miners or applicant for employment has instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any statutory right afforded by this Act.

SECTION 105(c)(2)

• Any miner or applicant for employment or representative of miners who believes that he has been discharged, interfered with, or otherwise discriminated against by any person in violation of this subsection may, within 60 days after such violation occurs, file a complaint with the Secretary alleging such discrimination.

SECTION 105(c)(2) (continued)

• Upon receipt of such complaint, the Secretary shall forward a copy of the complaint to the respondent and shall commence within 15 days of the Secretary’s receipt of the complaint, and if the Secretary finds that complaint was not frivolously brought, the Commission, on an expedited basis upon application of the Secretary, shall order the immediate reinstatement of the miner pending final order on the complaint.

SECTION 105(c)(2) (continued)

• If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall immediately file a complaint with the Commission, with service upon the alleged violator and the miner, applicant for employment, or representative of miners alleging such discrimination or interference and propose an order granting appropriate relief.

SECTION 105(c)(2) (continued)

• The Commission shall afford an opportunity for a hearing... and thereafter shall issue an order, based upon findings of fact, affirming modifying, or vacating the Secretary’s proposed order, or directing other appropriate relief. Such order shall become final in 30 days after its issuance.

SECTION 105(c)(2) (continued)

• The Commission shall have the authority in such proceedings to require a person committing a violation to this subsection to take such affirmative action to abate the violation as the Commission deems appropriate, including, but not limited to, the rehiring or reinstatement of the miner to his former position with back pay and interest.

SECTION 105(c)(2) (continued)

• The complaining miner, applicant, or representative of miners may present additional evidence on his own behalf during any hearing held pursuant to this paragraph.

SECTION 105(c)(3)

• Within 90 days of the receipt of a complaint filed under paragraph (2), the Secretary shall notify, in writing, the miner, applicant for employment, or representative of miners of his determination whether a violation has occurred. If the Secretary, upon investigation, determines that the provisions of this subsection have not been violated,

SECTION 105(c)(3) (continued)

• the complainant shall have the right, within 30 days of notice of the Secretary’s determination, to file an action in his own behalf before the Commission, charging discrimination or interference in violation of Paragraph 1.

SECTION 105(c)(3) (continued)

• The Commission shall afford an opportunity for a hearing and thereafter shall issue an order, based upon findings of fact, dismissing, or sustaining the complainant’s charges and, if the charges are sustained, granting such relief as it deems appropriate, including, but not limited to, an order requiring rehiring or reinstatement of the miner to his former position with back pay and interest or such remedy as may be appropriate.

SECTION 105(c)(3) (continued)

• Such order shall become final 30 days after its issuance. Whenever an order is issued sustaining the complainant’s charges under this subsection, a sum equal to the aggregate amount of all costs and expenses (including attorney’s fees) as determined by the Commission to have been reasonably incurred by the miner,

SECTION 105(c)(3) (continued)

• or in connection with, the institution and prosecution of such proceedings shall be assessed against the person committing such violation. Proceedings under this section shall be expedited by the Secretary and the Commission.

SECTION 105(c)(3) (continued)

• Any order issued by the Commission under this paragraph shall be subject to judicial review in accordance with section 106. Violations by any person of paragraph (1) shall be subject to the provisions of sections 108 and 110(a).

110 Penalties

• Section 110 (a) through 110 (l) set forth procedures and penalties for certain violations

• The provisions of Sections 110 (c) and 110 (d) of the Mine Act are the most stringent levels of enforcement action available to MSHA to ensure compliance with the Mine Act and related standards

110 Penalties Continued

• Under these provisions, MSHA is authorized to propose the assessment of a civil penalty against a director, officer, or agent of a corporate operator who knowingly orders, authorizes, or carries out a violation of a mandatory safety or health standard, or

110 Penalties Continued

• to pursue criminal proceedings against an operator or corporate director, officer, or agent who willfully violates a mandatory safety and health standard

110 Penalties Continued

• MSHA conducts investigations under Sections 110 (c) and 110 (d) to establish the facts and circumstances surrounding certain violations of the Mine Act or of mandatory safety and health standards in order to determine whether the violations were knowing or willful in nature

110 (a)

• The operator of a coal or other mine in which a violation occurs of a mandatory health or safety standard or who violates any other provision of this Act, shall be assessed ….$55,000. Each occurrence of a violation …. may constitute a separate offense.

110 (b)

• Any operator who fails to correct a violation for which a citation has been issued under section 104 (a) within the period permitted …. civil penalty of not more than $5,500 for each day…. continues.

110 (c)

• Whenever a corporate operator violates a mandatory health or safety standard or knowingly violates or fails or refuses to comply with any order issued under this Act, except an order… under subsection (a) or section 105 (c),

110 (c) Continued

• any director, officer, or agent of such corporation who knowingly authorized, ordered, or carried out such violation, failure, or refusal shall be subject to the same civil penalties, fines, and imprisonment…. subsections (a) and (d).

110 (d)

• Any operator who willfully violates a mandatory a mandatory health or safety standard, or knowingly violates or fails or refuses to comply with any order issued under section 104 and section 107, or

110 (d) Continued

• any order incorporated …. under subsection (a) or 105 (c), shall …. a fine of not more than $100,000, or by imprisonment for not more than one year, or by both, except that if the conviction is for a violation committed after the first conviction of such operator….punishment shall be by a fine of not more than $250,000, or by imprisonment for not more than five years, or both.

110 (e)

• Unless otherwise authorized by this Act, any person who gives advanced notice of any inspection to be conducted under this Act shall, upon conviction, be punished by a fine of not more than $1,000 or by imprisonment for not more than six months, or both.

110 (f)

• Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this Act shall, upon conviction, be punished by a fine of not more than $250,000, or by imprisonment for not more than five years, or both.

110 (g)

• Any miner who willfully violates the mandatory safety standard relating to smoking or carrying of smoking materials, matches, or lighters shall be subject to a civil penalty assessed by the Commission, which penalty shall not be more than $275 for each occurrence of such violation.

110 (h)

• Whoever knowingly distributes, sells, offers for sell, introduces, or delivers in commerce any equipment for use in a coal or other mine, including but limited to, components and accessories of such equipment, which is represented as complying with the provisions of this Act, or with any specification or regulation of the Secretary...

110 (h) Continued

• and which does not comply, shall, upon conviction, be subject to the same fine and imprisonment that may be imposed upon a person under subjection (f) of this section.

110 (i)

• The Commission shall have authority to assess civil monetary penalties provided in this Act. In assessing civil monetary penalties, the Commission shall consider…..

110 (j)

• Civil penalties owed under this Act shall be paid to the Secretary for deposit into the Treasury of the United States and shall accrue to the United States and may be recovered in a civil action…. Interest at the rate of 8 percent per annum… Interest shall begin to accrue 30 days after issuance of such order.

110 (k)

• No proposed penalty which has been contested before the Commission under section 105 (a) shall be comprised, mitigated, or settled except with the approval Commission. No penalty assessment which has become a final order of the Commission shall be comprised, mitigated, or settled except with the approval of the court.

110 (l)

• The provisions of this section shall not be applicable with respect to title IV of this Act.

Inspector Tools

• 104 (a) citation• 104 (b) order• 104 (d) (1) citation• 104 (d) (1) and (2)• 104 (g) (1) order• 107 (a) order• 314 (b)• 103 (j) and (k) order

Legal Definitions

• In reference to Section 110 (c) of the Act, a precedent decision defined “knowingly” as follows:– {T}he term “knowingly” as used in the Act…

does not have any meaning of bad faith or evil purpose or criminal intent. Its meaning is rather that used in contract law, where it means knowing or having reason to know.

“Knowingly” Continued

– A person has reason to know when he has such information as would lead a person exercising reasonable care to acquire knowledge of the fact in question or infer its existence.

– MSHA must show, by a preponderance of evidence, that a civil; violation occurred which may result in the assessment of a civil penalty against any director, officer or agent of a corporation.

“Knowingly” Continued

• It is expected that the majority of cases involving special investigations will fall into this category.

“Willfully”

• The most severe enforcement actions that can be taken involve criminal penalties contained in the statutory provisions of Sections 110(d), (e), (f), and (h).

“Willfully” Continued

• To prevail in charges under Section 110(d) alleging willful violations of the Act, the Government must establish beyond a reasonable doubt, that the operator, “willfully” violated any mandatory health or safety standard or other provision of the Act.

“Willfully” Continued

• The Sixth and Fourth Circuit Courts of Appeals have defined a “willful” violation as:– The failure to comply with a mandatory health

or safety standard is “willful” if done knowingly and purposely by a mine operator who, having a free will and choice, either intentionally disobeys the standard or recklessly disregards its requirements.

“Willfully” Continued

• The Fourth Circuit Court of Appeals has defined reckless disregard as:– The closing of the eyes to or deliberate

indifference toward the requirements of a mandatory safety standard which defendant should have known and had reason to know at the time of the violation.

“Willfully” Continued

• When bringing Section 110(d) charges, a strict (or literal) construction of the Act must be used. The Act or regulation violated will be interpreted precisely and implication or indirect meanings will not be recognized. The court will take the language used in its precise and technical meaning.

Initiating Section 110 Investigations

• Investigations are fact-finding exercises. The investigation of a possible 110 violation of the Act is initiated at the request of the District Manager.

110 Investigations Continued

• Usually as a result of one of the following:– a mine accident– complaints received alleging possible violations

of Section 110(e) (advanced notice), 110(f) (false reporting), 110(h) (equipment misrepresentation

– reviewing citations/orders for possible violations

110 Investigations Continued

• Special Investigators (SI’s) DO NOT conduct internal investigations into allegations against MSHA employees. Possible violations of Section 110(e), advanced notice of inspection, shall be immediately forwarded to the Administrator.

• All other special investigations shall be conducted by the District SI’s.

Review of Citations and Orders

• For each citation and/or order required by MSHA Policy to be reviewed, a Possible Knowing/Willful Violation Review Form, MSHA Form 7000-20, shall be completed.

Types of Citations and Orders Reviewed for Possible Further

Action• Each 104 (a) citation or order issued which

contributed to the issuance of a 107 (a) order

• Each 104 (d) citation or order identified as S&S and the negligence has been marked “high” or “Reckless Disregard”

• Each citation issued for working in violation of an order

Citations and Orders Reviewed Continued

• Only a violation of a mandatory health or safety standard or order issued under the Mine Act shall be reviewed:

• 30 CFR, Parts 48, 56, 57, 70 71, 72, 75, 77, and 90

• New regulations 30 CFR, Parts 46 and 62

Citations and Orders Reviewed Continued

• Inspector and Supervisor will review each citation/order jointly

• Completed 7000-20, and copies of the citation/order, modification (if issued), Legal Identity Report form, inspector’s notes, and any other supporting documentation will be forwarded to the ADM for immediate review (copy of Special Assessment form)

Knowing/Willful Form, MSHA Form 7000-20

• Must have balance between citation/order and 7000-20

• Inspector should give a description of the hazard perceived to exist which created the presence of a high degree of risk to the safety and/or health of the miners

• The h a z a r d must have existed at the time the violation was cited or observed

MSHA Form 7000-20 Continued

• Consider what event you anticipated occurring

• Determine whether event was likely to occur because other conditions existed (i.e., other violations cited) which would influence the occurrence

• Describe what you saw and heard, who did you speak with, what were you told, by whom

7000-20 Continued

• Anything which will help support the presence of a high degree of risk

• Information concerning any comments made by management or miners about the situation

7000-20 Package

• These items will normally accompany each completed Form 7000-20;– copy of citation/order reviewed and all

subsequent actions– copy of the Legal Identity Report Form 2000-7– legible copy of inspector’s notes– copies of maps or sketches– copies of records required to be kept by MSHA

7000-20 Package Continued

– copy of a plan or portion of a plan, which details with the violation

– copy of any Part 100, Health and Safety Manager’s conference, and the results

– completed multi-page MSHA Form 7000-20– THIS FORM IS CONSIDERED

CONFIDENTIAL-PRE-DECISIONAL- DO NOT KEEP A COPY OF THIS FORM!

– Put in a sealed envelop marked K/W, SI, or ADM for Inspection/Enforcement

AUTHORITY FOR CIVIL PENALTY ASSESSMENT

• SEC. 105 Procedure for Enforcement

• SEC. 110(a) Operator assessments citations and orders $55 - $55,000

• SEC. 110(b) Operator assessment - failure to comply with 104(a) citations up to $5,500 per day

AUTHORITY FOR CIVIL PENALTY ASSESSMENT-

CONTINUED• SEC. 110(c) Agent assessment (knowing

violations) - up to $55,000

• SEC. 110(g) Miner assessment for smoking articles - up to $275 per article

111 Entitlement of Miners

• When orders issued under Sections 103, 104, or 107 close mines or areas of mines miners are entitled pay for the remainder of the shift

• Next shift four hours pay

111 Entitlement - continued

• When orders issued under Sections 104 or 107 for mandatory safety standards pay for up to one week

• When the operator does not comply with an order issued under Sections 103, 104, or 107 miners receive additional pay

111 Filing a Complaint

• Complaints must be filed directly with the Federal Mine Safety and Health Review Commission.