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PROGRAM POLICY LETTER NO. P12-V-01

FROM:          KEVIN G. STRICKLIN                       Administrator for                       Coal Mine Safety and Health

SUBJECT:    Reissue of  P09-V-08 - Procedures for Revoking MSHA Certifications                              to  Take Respirable Dust Samples or to Maintain and Calibrate

**Scope**This Program Policy Letter (PPL) applies to all Mine Safety  and Health Administration (MSHA) personnel, mine operators, independent  contractors, contractor sampling services and other interested parties.

**Purpose**  This PPL establishes administrative procedures for revoking  an individual�s MSHA certification to take respirable dust samples or to maintain  and calibrate approved dust sampling devices under 30 Code of Federal  Regulations (C.F.R.) parts 70, 71, and 90. 

**Policy**The District Manager may revoke a certification if he or she  has good cause to believe that the certified person has violated the existing  requirements.  Unless there are  mitigating circumstances, a certified person generally would not be eligible to  reapply for certification for one year following the date of the revocation  letter.  However, case-specific  conditions should be considered in deciding if and when a person may reapply  for certification.  Certifications may be  revoked for violation of sampling, maintenance and calibration requirements regarding:   (1) maintenance and calibration of  sampling devices; (2) testing and examination of sampling devices immediately  before each sampling shift; (3) distribution and proper placement of sampling  devices, sample collection, and collection of sampling devices used to take  dust samples; (4) performing onshift examinations of sampling devices; (5)  removal of the filter cassette from sampling devices; (6) completing and  signing the dust card that is provided by the manufacturer for each filter  cassette; and (7) transmitting samples to MSHA. 

Failure to properly carry out any of these prescribed  procedures may result in the initiation of formal revocation procedures.  Evidence compiled by MSHA through visual examination  and physical testing of sampling devices, observation, review of available records,  and/or interviews revealing inadequate knowledge of requirements will serve as  the basis for initiating the revocation process.  The evidence will become part of the  administrative record establishing the justification for the proposed  revocation action.  If the evidence does  not support a proposed revocation, a notice of deficiency may be appropriate.  Revocation of a certification will prohibit the  person from performing any of the duties for which that certification is  required under 30 C.F.R. parts 70, 71 and 90.     

When there is a decision to revoke a person�s certification(s),  including any decision that may involve possible criminal prosecution, the  District should immediately initiate the following administrative  procedures.  

**A.        Proposed Revocation or Notice of  Deficiency to the Certified Person**

The District Manager should send,  by certified mail with return receipt requested, a letter proposing revocation  or a notice of deficiency to the certified person.  This letter should clearly state the  following:

            1.         Proposed  action.

            2.         Specific issue(s) that prompted the  proposed action.

            3.         Specific reason(s) for the issue(s).

            4.         Certified person�s right to submit documentary  evidence to, and request an information meeting with, the District to discuss  the proposed action.

            5.         If the certified person fails to respond  within 30 days to a letter proposing revocation, the District should send a notice  of revocation.

This initial letter must contain sufficient  information specifying the basis of the proposed revocation or notice of  deficiency and what has to be done to achieve compliance on the matter with the  District.  Based on the specific issues  prompting the proposed action, the certified person may be required to take remedial  action determined by the District to maintain his or her certification. 

The proposed revocation or notice  of deficiency should arise as the result of a recommendation from an inspector,  special investigator, health specialist or other person involved in the  fact-finding.  Since the District Manager  makes the final decision, the District Manager should not be the recommending  official in the proceedings.   Additionally, since the Administrator for Coal Mine Safety and Health is  the deciding official for any appeal, the Administrator should have no role in  the District�s process.

**B.  Information  Meeting or Submission from the Certified Person**

            1.         Information Meeting

            The certified person has 30 calendar days from the date  of the notice of proposed action to request an information meeting.  This meeting should be at a place convenient  to the certified person.  If practical,  consider using conferencing technology.

If there is an information meeting,  the District Manager or a representative of the District Manager must perform  or include the following steps in the meeting:

             

                        a.         Restate the proposed action.

                       b.         Restate the issues and determine if the  certified person understands the issues and their consequences.

                       c.         Restate and explain the reasons for the  action and present the supporting information or a thorough summary of the  information.

                       d.         Advise that the certified person can be  accompanied by a representative.

                        e.         Allow the certified person to present  information and witnesses.

                       f.          Advise of the District's date to make  the decision and of the certified person�s appeal rights.

                       g.         Advise that the administrative record  remains "open" for 15 calendar days, if necessary, so the certified  person can submit additional information.

          

            The meeting should be tape recorded  with the consent of the certified person.   If consent cannot be obtained, detailed notes should be taken.  Make the parties aware of the recording or  the notes.  A meeting summary should be prepared  and signed and dated by the MSHA person who prepared it.  If possible, all other participants should  sign and date the summary. 

 

            2.         Submission of Information from the Certified  Person

            The certified person may submit documentary  evidence in place of, or in addition to, an information meeting.  The District must receive this submission, in  writing, within 30 calendar days from the date of the initial letter (or within  15 calendar days after the information meeting).  When the District receives the submission,  the District will stamp the submission with the date of receipt.

            3.         After Information Meeting

After holding an information  meeting or receiving a written submission, the District Manager must:

              a.         Review and evaluate all records  including notes, tapes, documents or written submissions.

              b.         Send one of four written responses to  the certified person with the results of the review:

                                   1)         A "clean bill" letter if the  record satisfies the deficiency or issue(s);

                                    2)         Notice of remedial action needed to  maintain certification;

                                    3)         Notice of revocation; or 

                                   4)         A letter requesting additional information  needed to make a decision.

**C.        Decision on Revocation**

Base the decision on the  administrative record and credibility of witnesses.  The administrative record should contain:

            1.         Correspondence from the District and  the certified person

            2.         Witness statements

            3.         Supporting documents

                        a.         maintenance and calibration records                          b.         certified dust data cards                          c.         sampling custody records                           d.         courses of instruction in both  respirable dust sampling and the  maintenance and  calibration of sampling equipment                          e.         time and attendance sheets, etc.                          f.          copies of related citations

            4.         Personnel information

            5.         District and investigation reports

                        a.         inspector/training specialist report                          b.         available special investigation  material, etc.

            6.         Meeting notes (preferably signed and  dated), transcripts, or tape recordings.   As will be discussed, the administrative record will be made available  for the certified person to review.  For  this reason, confidential witness statements should not be part of the  administrative revocation record.  Sufficient  non-confidential information should be gathered to independently support the  revocation action.  If confidential  statements are needed for a criminal investigation, a separate file should be  created for that action.

            7.         Inspector or training specialist notes

**D.        Notice of Revocation**

The notice of revocation must be in writing and contain: 
> 
1.	Statement of the decision or action  

2.	Specific reason(s) or issue(s) for the revocation (�� 70. 204(a), 71.204(a), 90.204(a), 70.204(d), 71.204(d), 90.204(d); etc.)  

3.	Statement that the decision will take effect 30 calendar days from the date of the notice of revocation  

4.	Statement of the right to appeal

 5.	Statement that filing the appeal will stay the effective date of the decision until the Administrator for Coal Mine Safety and Health renders his decision  

6.	Statement that the administrative record is available for review at the    District Office and a copy is available upon request  

7.	Notification of when the person may reapply for certification.    Send the notice of revocation to the individual by certified mail with return receipt requested.  All correspondence to a certified person should be sent to that person only (not to supervisors or other mine personnel) unless the person designates, in writing, a representative 

**E.         Appeals Procedure**

A certified person may appeal the  revocation decision to the Administrator for Coal Mine Safety and Health.  The individual has 30 calendar days from the  date of the revocation notice to file an appeal.  Upon request from the Administrator, the  District will forward a copy of the administrative record to the  Administrator.  The Administrator will  make a decision based on that record.   Since the Administrator makes the final appellate decision, he or she  must not participate in any of the prior processes.  Any National Office staff who have given  advice or participated in the District level proceeding must not participate at  the Administrator�s level.

            The  following are examples of Administrator's responses:

1.         Appeal is denied.  The District decision is upheld and the  revocation stands.

2.         Appeal is granted.  The District will not revoke the individual's  MSHA certification.

3.         Administrator requires an additional  meeting or information.  District  assists as necessary.

4.         Administrator refers the matter back  to the District with appropriate instructions.  The Administrator may base this action on new  information that was not available to, or considered by, the District  Manager.  The District takes appropriate  action based on instructions from the Administrator.

**F.         Inform Operators and Other MSHA  Districts**

If the Administrator denies the  appeal, or upon expiration of the time available for appeal, the District will  immediately notify, in writing, the affected mine operator(s) that employs the  revoked certified person or who use the sampling contractor whose MSHA  certification was revoked.  The District  will also notify other MSHA District Offices of the revocation.

 

**G.        Applying for Recertification after  Revocation**

Unless there are mitigating  circumstances, a certified person cannot reapply for recertification for 12  months following issuance of the notice of revocation.  These conditions will vary depending upon  factors specific to each case.  Some  factors to consider include the basis for revocation and the individual�s record  as a certified person for dust sampling or for maintenance and calibration of  approved dust sampling devices.  The  request for recertification must be made in writing to the District  Manager.  In addition, individuals seeking  to be recertified may be required to attend an MSHA training course and will be  required to pass the MSHA examination on sampling or on maintenance and  calibration procedures for respirable dust sampling equipment.  

**H.        Criminal Proceedings**

In those cases where the willful  conduct of a certified person warrants possible criminal prosecution, the  District will follow the procedures in the Special Investigations Procedures  Handbook (Chapter 4, Section 110 Investigations).

**Background**  Proper maintenance, calibration and use of approved dust  sampling devices are an essential part of protecting miners� health.  Accordingly, to safeguard the integrity of the  sampling process, 30 C.F.R. parts 70, 71 and 90 require these tasks to be performed only by persons certified by MSHA.  Since certified persons perform an important  function in providing a healthful environment, failure of certified persons to carry  out the tasks prescribed in 30 C.F.R. parts 70, 71 and 90 places miners at risk  and erodes miner confidence and support in the program.  The preamble to these rules published in 1980  (45 FR 23996, April 8, 1980) made clear that MSHA may revoke these certifications  if the sampling, maintenance and calibration procedures prescribed by these  rules are not strictly followed by certified persons.  

**Authority**  The Federal Mine Safety and Health Act of 1977, as amended,  30 U.S.C.  � 801 et seq.; and 30 C.F.R.  �� 70.202 and 70.203, 71.202 and 71.203, 90.202 and 90.203. 

**Filing  Instructions**  This PPL should be filed behind the tab marked �Program  Policy Letters� at the back of Volume V of the Program Policy Manual. 

**Internet  Availability**  This PPL may be viewed on the World Wide Web accessing the  MSHA home page (http://www.msha.gov) and  choosing �Compliance Info� and �Program Policy Letters.�  **Issuing Offices  and Contact Persons**  Coal Mine Safety and Health, Division of Health   Robert A. Thaxton (202) 693-9515  E-mail: [email protected]

**Distribution**  MSHA Program Policy Manual Holders  Coal Mine Operators  Independent Contractors  Miners� Representatives  Contractor Sampling Services  Special Interest Groups

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