The Seventh Circuit Court of Appeals upheld the Commission's 5/24/2012 decision, it is clear that MSHA has more power to demand records from operators. While the expansive language used by the Commission describing the scope of MSHA's right to seek documents will likely give operators pause, it does not mean that any operator should give the inspector full access to the filing cabinet or make a spare set of keys for him. On the contrary, the Commission emphasized that, while MSHA has broad authority to seek documents not otherwise required, the request must be reasonable and the information sought must be relevant and necessary to a legitimate agency purpose. Moreover, there is talk of appealing the 7th District Ruling. It will require support from the entire Industry!

 

Info & Recommendations on "Records Ruling" for Operators

Immediately below are the 2 sections of the Act referenced in the ruling May 24, 2012 by the FMSHRC specifically addressing MSHA's right to request and see payroll, time cards, and medical records "necessary" to perform its functions under The Act. Following these sections of the Act are 30CFR Part 50.41 and 50.11. The conclusion reached by 4 of the commissioners is next. Commissioner Duffy dissented and wrote a 12 page dissention paper (appended at the end of the court record).

My opinion at this point is that the language of the ruling applies to documentation "reasonably necessary" to determine correct reporting on documents required by 30CFR Part 50. Additional recommendations are in the latter part of this post.

The 1977 MS&H Act Sec. 103(h) In addition to such records as are specifically required by this Act, every operator of a coal or other mine shall establish and maintain such records, make such reports, and provide such information, as the Secretary or the Secretary of Health, Education, and Welfare may reasonably require from time to time to enable him to perform his functions under this Act. The Secretary or the Secretary of Health, Education, and Welfare is authorized to compile, analyze, and publish, either in summary or detailed form, such reports or information so obtained. Except to the extent otherwise specifically provided by this Act, all records, information, reports, findings, citations, notices, orders, or decisions required or issued pursuant to or under this Act may be published from time to time, may be released to any interested person, and shall be made available for public inspection.

The 1977 MS&H Act SEC. 108 (a) (1) The Secretary may institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order in the district court of the United States for the district in which a coal or other mine is located or in which the operator of such mine has his principal office, whenever such operator or his agent—

(E) refuses to furnish any information or report requested by the Secretary or the Secretary of Health, Education, and Welfare in furtherance of the provisions of this Act, or
(F) refuses to permit access to, and copying of, such records as the Secretary or the Secretary of Health, Education, and Welfare determines necessary in carrying out the provisions of this Act.

30 CFR 50.41
Verification of reports.


Upon request by MSHA, an operator shall allow MSHA to inspect and copy information related to an accident, injury or illnesses which MSHA considers relevant and necessary to verify a report of investigation required by 50.11 of this part or relevant and necessary to a determination of compliance with the reporting requirements of this part.

30 CFR 50.11
Investigation.


(a) After notification of an accident by an operator, the MSHA District Manager will promptly decide whether to conduct an accident investigation and will promptly inform the operator of his decision. If MSHA decides to investigate an accident, it will initiate the investigation within 24 hours of notification.

(b) Each operator of a mine shall investigate each accident and each occupational injury at the mine. Each operator of a mine shall develop a report of each investigation. No operator may use Form 7000-1 as a report, except that an operator of a mine at which fewer than twenty miners are employed may, with respect to that mine, use Form 7000-1 as an investigation report respecting an occupational injury not related to an accident. No operator may use an investigation or an investigation report conducted or prepared by MSHA to comply with this paragraph. An operator shall submit a copy of any investigation report to MSHA at its request. Each report prepared by the operator shall include,

(1) The date and hour of occurrence;

(2) The date the investigation began;

(3) The names of individuals participating in the investigation;

(4) A description of the site;

(5) An explanation of the accident or injury, including a description of any equipment involved and relevant events before and after the occurrence, and any explanation of the cause of any injury, the cause of any accident or cause of any other event which caused an injury;

(6) The name, occupation, and experience of any miner involved;

(7) A sketch, where pertinent, including dimensions depicting the occurrence;

(8) A description of steps taken to prevent a similar occurrence in the future; and

(9) Identification of any report submitted under §50.20 of this part.

FMSHRC Conclusion

IV.

Conclusion

For the reasons set forth herein, we conclude that the judge correctly ruled that Petitioners violated 30 C.F.R. § 50.41 by refusing to permit the Secretary access to the related payroll and medical information requested as part of the Part 50 audit. Accordingly, the citations and orders are affirmed.

            /s/ Mary Lu Jordan

                                                                     Mary Lu Jordan, Chairman

The complete ruling can be accessed at http://www.fmshrc.gov/decisions/recent.html. Click on Commission Decisions and click html for May 24, 2012.

$afepro Recommendation

Any record (other than those listed below) requested to be released by MSHA should be evaluated by your lawyer before being turned over to the agency. You should say to the inspector,"Mr. inspector, please give me a list of the records you want and I will do my best to get them for you. It is our policy to have all records not required by the Act to be reviewed by our lawyer before they are released to anyone. Please put this in your field notes".

As additional information is available it will be posted on this website. Please remember that proof of "reasonably required"is the responsibility of MSHA. As more info is available we will post additional recommendations to help the Industry protect itself from overzealous enforcement by MSHA brought on by probable premature and unreasonable reaction by inspectors to this ruling .

Record Keeping

Any record (other than those listed below) requested to be released by MSHA should be evaluated by your lawyer before being turned over to the agency.

40.4                             Notice of Miners Representative

41.20                           Legal Identity Report

44.10                           Filing of Petition of Modification of a Standard

45.4                             Independent Contractor Register

46.3                             Training Plan

46.5 (b) (4)                  New Miner HazCom Training

46.6 (b) (4)                  Newly hired experienced miner HazCom Training

46.7 (a)                        New task HazCom Training

46.9                             Records of Training

48.23                           Training Plan

48.29                           Training Records

47.21                           Hazardous Chemical List

47.31                           Hazcom Program

47.51                           Material Safety Data Sheets                               

50.11                           Investigation Report

50.20                           Form 7000-1 Accident, Injury and Illness Report

50.30                           Form 7000-2 Quarterly Employment Report

50.40                           Maintenance of Investigation Reports, Forms 7000-1 and 7000-2

62.110                         Noise Exposure Assessment

62.150                         Hearing Conservation Program

62.171                         Audiometric Test Records

62.175                         Reportable Hearing Loss

62.180                         Hearing Conservation Program Training

56.3203                       Rock Bolt Tests and Certification

56.4201                       Firefighting Equipment Inspections

56.4330                       Firefighting, Evacuation and Rescue Procedures

56.5002                       Dust, Fumes, Mist survey

56.5005                       Written Respiratory Program

56.12028                     Ground Continuity and Resistance Record

56.13015                     Compressed Air Receiver Tank Inspection

56.13030                     Boiler inspection

56.14100                     Pre-shift Inspection Report (Only records of unrepaired defects)

56.18002                     Workplace Examination Report

56.18010                     First Aid Training Verification

56.19022                     Hoist Wire Rope Measurement (Manhoist)

56.19023                     Hoist Inspection, Testing and Maintenance (Manhoist)

56.19057                     Hoist Operator Physical Examination

56.19121                     Hoist Inspection