SECTION 104(e) PATTERN OF VIOLATIONS

Section 104(e) of the Mine Act provides for sanctions against mine operators who have a pattern of violations of mandatory health and safety standards that could significantly and substantially contribute to the cause and effect of health and safety hazards. 30 CFR Part 104 includes procedures for initial screening of mines that may be developing a pattern of violations; criteria for determining whether a pattern of violations exists at a mine; procedures for issuance of potential pattern notice and final pattern notice; and procedures for terminating a Notice of Pattern of Violations. Either the Administrator for Coal Mine Safety and Health or the Administrator for Metal and Nonmetal Mine Safety and Health makes the final determination as to whether a Notice of Pattern of Violations will be issued at a specific mine. Mine operators remain on the 104(e) Pattern of Violation series until:

• No 104(e) Order of Withdrawal is issued within 90 days of issuance of the initial 104(e) Notice of Pattern of Violations;

• An inspection of the entire mine occurs and no "S&S" violations are issued; or

• Partial mine inspections, collectively covering the entire mine, are conducted within 90 days of issuance of the 104(e) Notice of Pattern of Violations and no "S&S" violations are cited.

A. Issuance of a Notice of Pattern of Violations

The Notice of a Pattern of Violations shall only be issued by a District Manager on an MSHA Citation/Order Form 7000-3.

1. Complete Item 8 with the following language:

Pursuant to Section 104(e)(1) of the Federal Mine Safety and Health Act of 1977 (Mine Act), you are hereby notified that a violation exists at the (Name of Mine). If upon any inspection within 90 days after issuance of this Notice, an Authorized Representative of the Secretary finds any violation of a mandatory health or safety standard that could significantly and substantially contribute to the cause and effect of a coal or other mine

safety or health hazard, the Authorized Representative shall issue an order requiring the operator to cause all persons in the area affected by such violation, except those persons referred to in Section 104(c) of the Mine Act, to be withdrawn from, and to be prohibited from entering such area until an Authorized Representative of the Secretary determines that such violation has been abated. This Notice of Pattern of Violations shall remain posted at the (Name of Mine) until it is terminated by an Authorized Representative. 2.Leave Items 9A, 9B, 9C, 10A through 10D, and Item 11 blank.

3.In Item 12, enter "104(e).

4.Check the “Written Notice” block in Item 13. 5.Items 14A through 14F should be left blank. 6.Items 15, 16, 17, and 18 are left blank.

B. Issuing 104(e)(1) or 104(e)(2) Orders of Withdrawal on MSHA Citation/Order

7000-3 Form

1. Complete Item 8 with a narrative description of the violation. At the end of the narrative, add the following statement: “A Notice of Pattern of Violations, number xxxxxxx, was issued on xx/xx/xx.”

2. Leave Items 9A and 9B blank. However, where violations of interim mandatory health and safety standards found in Title 2 and Title 3 of the Mine Act, not superseded by mandatory health and safety standards, are cited as “S&S” enter the appropriate section in 9B. Complete Item 9C with the mandatory standard violated;

3. Complete Items 10A through D and Item 11 based on the determination made at the time the violation was observed.

4. In Item 12, enter "104(e)(1)" or "(2)" and in Item 13 check the "Order" box;

For 104(e)(1) orders, check Item 14D. Complete Item 14E with the Notice of Pattern of Violations number and Item 14F with its issuance date; For 104(e)(2) orders, check the "Order" box in Item 14B. Write the number from the 104(e)(1) order in Item 14E and its date of issue in Item 14F;

5. In Item 15 "Area or Equipment" describe the area or equipment affected; and 6. Item 16 "Termination Due Date and Time" is left blank.

C. Terminating a Notice of Pattern of Violations

Terminating a Notice of Pattern of Violations is done on a Mine Citation/Order Continuation Form 7000-3a using the initial number from the Notice of Pattern of

Violations. Termination of Notices of Pattern of Violations will be issued by the District Manager or his designee. Depending on the basis for terminating the Notice of Pattern of Violations, language in the narrative should include one of the following statements:

Example One - “xxxxxx Mine has gone 90 days from the issuance of a Notice of

Pattern of Violations without being cited for a violation which could significantly and substantially contribute to the cause and effect of a mine safety or health hazard. Therefore, the mine is no longer subject to orders of withdrawal issued pursuant to Section 104(e) of the Federal Mine Safety and Health Act of 1977. Accordingly, the Notice of Pattern of Violations is terminated.”

Example Two - “xxxxxx Mine underwent an inspection of the entire mine which was

completed on xx/xx/xx without being cited for a violation which could significantly and substantially contribute to the cause and effect of a mine safety or health hazard.

Therefore, the mine is no longer subject to orders of withdrawal issued pursuant to Section 104(e) of the Federal Mine Safety and Health Act of 1977. Accordingly, the Notice of Pattern of Violations is terminated.”

D. All 104(e) violations should be reviewed for possible knowing and willful if the negligence is at least “High.”

E. Prepare and send to the District Office a packet that includes: the original Possible Knowing/Willful Violation Review Form; a copy of the Legal Identity Report; a copy of the relevant general field notes; a copy of the citation/order notes; photographs if

available; a copy of relevant citation(s) or order(s); and a copy of all modifications. This packet shall be submitted to the District Office in a timely manner or as directed by the District Manager.