[Federal Register Volume 60, Number 154 (Thursday, August 10, 1995)]
[Notices]
[Pages 40859-40862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19786]
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
Accident Investigation Procedures Review
AGENCY: Mine Safety and Health Administration, Labor.
ACTION: Notice.
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SUMMARY: The Mine Safety and Health Administration (MSHA) is conducting
a review of its accident investigation procedures and policies, which
were last reviewed in 1991. The typical MSHA accident investigation
includes a physical inspection of the mine site, equipment testing and
analysis, and witness interviews. Although the Agency is interested in
the public's views on its complete investigation procedures, the Agency
particularly seeks comments on the witness interview phase. MSHA will
use these comments to assist in its review.
DATES: Written comments must be submitted on or before October 10,
1995.
ADDRESSES: The accident investigation procedures apply to all mines,
and comments may be sent to either the Administrator, Coal Mine Safety
and Health, 4015 Wilson Boulevard, Room 828, Arlington, Virginia 22203,
Fax: 703-235-1517 or to the Administrator, Metal and Nonmetal Mine
Safety and Health, 4015 Wilson Boulevard, Room 728, Arlington, Virginia
22203, Fax: 703-235-9173, as appropriate. Commenters are encouraged to
send comments on a computer disk along with an original hard copy.
FOR FURTHER INFORMATION CONTACT: Jack Tisdale, Accident Investigation
Program Manager, Division of Coal Mine Safety and Health, 703-235-1140,
or David Park, Accident Investigation Program Manager, Division of
Metal and Nonmetal Mine Safety and Health, 703-235-1565.
SUPPLEMENTARY INFORMATION: MSHA accident investigation procedures are
designed to identify all relevant facts about a mining accident in an
orderly manner and then to determine the contributory causes of a
particular accident. After MSHA reviews and analyzes the facts, the
Agency issues a report describing its findings and conclusions
regarding the accident. The purpose of the report is to help prevent
similar accidents from occurring in the future.
The investigation process itself is composed of three phases--
physical inspection of the areas of the affected mine, analysis and
testing of mining equipment which may have been involved in the
accident, and interviews of persons who may have relevant information
about the conditions or practices surrounding the accident. While these
phases have not changed over the years, issues such as who should be
present during witness interviews have been raised.
Specifically, in investigations involving fatalities, concerns have
been raised over the attendance of mine operators and their
representatives, miners' representatives, families of the victims and
their representatives, and the news media. It is MSHA's experience that
the attendance of these parties at a witness interview session
[[Page 40860]]
can adversely affect the Agency's ability to ascertain the facts
important to understanding the cause of the accident.
In order to seek a wide range of viewpoints in its review of these
procedures, particularly as they pertain to witness interviews, the
Agency is soliciting comments, especially from people who would be
directly affected if revised witness interview procedures result from
this review. The principal procedures that are the subject of the
review are contained in this notice.
I. Legislative and Regulatory Background
The responsibility of MSHA to conduct accident investigations is
found in the statutory provisions of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. section 801 et seq. (Mine Act).
Among other responsibilities, section 103(a) of the Mine Act
directs that MSHA shall make frequent inspections and investigations
for the purpose of obtaining, utilizing, and disseminating information
relating to health and safety conditions, the causes of accidents, and
the causes of diseases and physical impairments originating in mines.
MSHA is also given the responsibility in section 103 to gather
information with respect to mandatory health and safety standards,
determine whether an imminent danger exists, and whether there is
compliance with the mandatory health and safety standards or with any
citation, order, or decision issued under the Mine Act.
In addition to the general provisions of section 103(a) for the
investigation of accidents, the Mine Act provides significant and
specific responsibilities for MSHA to assume in connection with those
investigations. For example, section 103(b) provides that the Agency
may hold a public hearing and issue subpoenas for the attendance and
testimony of witnesses and the production of relevant papers, books,
and documents. In connection with any public hearing, oaths may be
administered as well.
Other statutory authority in section 103 can indirectly affect
accident investigations. Section 103(j) provides that in the event an
accident occurs, the operator shall notify MSHA and shall take
appropriate measures to prevent the destruction of any evidence which
would assist in investigating the causes of the accident. MSHA is
authorized, where rescue and recovery work is necessary, to take
whatever action is deemed appropriate to protect the life of any
person, and the Agency may supervise and direct the rescue and recovery
activities in such mine.
Finally, section 103(d) requires that accidents are to be
investigated by the mine operator or his agent to determine the cause
of the accident and means of preventing a recurrence. Records regarding
the accident and investigation are to be made available to MSHA.
Regulations regarding operator accident investigations and
recordkeeping are contained in 30 CFR part 50.
II. Current Investigation Procedures
MSHA currently has guidelines and instructions for conducting
investigations of accidents in the MSHA handbook, ``Investigation of
Mining Accidents and Other Occurrences Relating to Health and Safety.''
The guidelines and instructions are primarily procedural and
administrative, and are intended to serve as organizational and
technical aids for MSHA's accident investigators. The handbook,
originally dated September 1988, was last substantively revised in July
1991.
MSHA's objective is to conduct its investigations in an independent
and unbiased manner. As part of each accident investigation, Agency
staff in various areas of expertise thoroughly examine the
circumstances, determine the causes, and disseminate information which
may be used to prevent future similar accidents. MSHA conducts its
investigations in a manner designed to assure that the information
gathered is complete and accurate. Each investigation is composed of
three phases including a physical inspection of the affected mine,
complete analysis and testing of mining equipment which may have been
involved in the accident, and interviews of persons who may have
relevant information about the conditions or practices surrounding the
accident. The following discussion addresses each phase.
A. Physical Examination of the Accident Site
The physical examination of an accident site is usually conducted
in cooperation with the relevant state agency that has authority over
matters of mine safety and health, the mine operator, and the miners'
representative. State mine safety and health agencies generally have
some statutory or regulatory authority to conduct accident
investigations. Consistent with the Mine Act, mine operators accompany
MSHA personnel during the physical examination of the accident site.
Section 103(f) of the Mine Act provides rights for miners'
representatives to participate in enforcement-related activities of
MSHA. In the accident investigation context, these rights include the
participation of miner representatives during the physical examination
of accident sites.
B. Equipment Analysis
Another phase of MSHA accident investigations involves the analysis
of mining equipment which may have been involved in the accident. In
these cases, MSHA investigators have invited the equipment
manufacturer's representative to participate as an information source
for MSHA. The equipment manufacturer assists the MSHA investigators in
making determinations relative to equipment failures or malfunctions.
MSHA may also perform testing of equipment or other physical evidence
as necessary to identify contributing or causative factors. Other
private interests may participate in these testing activities if MSHA
believes that their participation will assist in the Agency's analysis
of the cause of the accident. State officials, representatives of the
mine operator, the manufacturer, and miners' representatives ordinarily
may observe equipment testing.
C. Witness Interviews
The witness interview phase is an important part of the accident
investigation. Because witness recollections can become vague with the
passage of time, these interviews usually occur as soon as possible
after the accident scene has been physically examined. The goal of the
interview is to obtain a candid, precise, and accurate statement from
the witness. Cooperation between the mine operator, miners, and any
other interested parties in the investigation during the interview
phase is essential. It results in a greater opportunity for MSHA to
develop a comprehensive accident report based on accurate facts,
resulting in valid conclusions as to the cause of the accident. These
conclusions, in turn, lead to better guidance for MSHA and the public
in preventing future accidents.
Under current accident investigation policy, each person is
interviewed separately to obtain his or her personal recollection of
the relevant events and circumstances. The witness' statement is
completely voluntary. The witness may refuse to answer any question or
may terminate the interview at any time. Witnesses are advised prior to
the interview that they have a right to have a personal representative
of their choice present during the interview process. They are also
advised that there will be a verbatim record of the interview, which
will be made available to the public at the conclusion of the
[[Page 40861]]
investigation (except in those cases where a confidential interview is
given). Witnesses are advised of their option to make a confidential
statement, which MSHA will protect from public disclosure to the extent
allowed by law.
MSHA accepts relevant information from any source, public or
confidential. Information obtained by others is considered on its
merits but, as the fact finder and investigating authority, MSHA makes
its own evaluation of the probative value of such information.
MSHA recognizes that many states have a responsibility for the
investigation of mining accidents which occur in their jurisdiction.
For this reason, MSHA cooperates extensively with state mining
officials in conducting all phases of its accident investigations,
including witness interviews.
The MSHA investigator considers the following factors when
determining the appropriate procedures for conducting witness
interviews:
1. The role of the mine operator, miners' representative, and the
state mining agency;
2. Ground rules for the questioning of witnesses by parties other
than MSHA;
3. The method for recording the interviews (e.g., tape recorder,
stenographic reporter); and
4. The location of the interviews.
The procedures which are used depend upon the circumstances of each
accident investigation, and the decisions are made by the investigator
at the scene on a case-by-case basis. Witness interviews conducted with
the participation of the mine operator, the representative of the
miners, where the miners have representation, and the state inspection
agency is the normal procedure. This multi-party format results in an
investigation where the affected parties are afforded an opportunity to
bring their viewpoints to the investigation and enhance the
completeness of the report. Under current policy, MSHA may limit the
participation and/or attendance of parties either directly or
indirectly involved in the investigation during the witness interview
phase. Additionally, the attendance of other persons, particularly
persons not directly involved in the investigation, may also be
restricted.
The MSHA Accident Investigation Manual lists five factors for the
MSHA investigator to consider when determining who may be present for a
witness interview. These factors are:
1. Public statements or disclosures from participants that may
compromise the integrity of the investigation;
2. Behavior during interviews that could interfere with the
effectiveness of the interview process;
3. Otherwise creating an atmosphere not conducive to MSHA's
carrying out its investigatory responsibilities;
4. Indications of disruptive conduct as evidenced during the
physical inspection of the mine; and
5. Requests by the witness for a private interview.
The existence of one or more of these factors may cause the
accident investigator to conduct witness interviews in private; that
is, with only federal and state mining officials present.
In all instances, however, each witness is afforded the opportunity
to be accompanied by a personal representative of his or her choosing.
III. Court Decisions Which Have Affected the Procedure
For many years, MSHA and its predecessor agencies used the multi-
party format for conducting accident investigations, including the
witness interview process. Typically, the operator and the
representative of the miners, if any, joined with MSHA and state mining
officials in all aspects of the accident investigation process. The
witness statements were voluntary and public hearings were normally not
held. (The last public hearings in an accident investigation were held
in 1976 and 1977 as part of MSHA's investigations of the Scotia mine
explosions and the Tower City, Pennsylvania, inundation.)
In 1984 there was high media interest in the Wilberg Mine accident
investigation. Twenty-seven miners lost their lives in a fire. Media
representatives sued MSHA, seeking access to the witness interview
sessions. In Society of Professional Journalists v. Secretary of Labor,
616 F.Supp. 569 (D.D.C. Utah, 1985), the Court ruled that while the
government could conduct private questioning (excluding the media)
solely by government officials, MSHA could not selectively permit some
members of the public to attend a questioning session while excluding
other members of the public, specifically, the media. The Court did not
explicitly resolve the issue of exactly who was to be considered a
member of the public. MSHA appealed the decision to the Tenth Circuit
Court of Appeals. The Circuit Court directed that the judgment be
vacated and dismissed the case on the ground that the issue was moot
since MSHA's investigation was completed 832 F.2d. 1180 (10th Cir.,
1987).
After that case, MSHA instituted an investigative process which
provided that the operator and the miners' representative be excluded
as participants in the witness interview phase, except when either
party was acting as the personal representative of an individual
witness. Later, during an accident investigation at a union-affiliated
mine, the United Mine Workers of America (UMWA) filed a court challenge
to change this process. In International Union, UMWA v. Martin, 785
F.Supp. 1025 (D.D.C., 1992), the Federal District Court for the
District of Columbia upheld the right of the government to conduct
completely private government questioning of witnesses. The practical
effect of this legal decision was to create a witness interview
procedure which neither the mine operator nor the miners'
representative favored. MSHA then decided that it would give the
Agency's accident investigators discretion to conduct interviews in a
manner most conducive to a complete and accurate accident report.
Revised procedures, issued in 1991, included this discretionary
authority and are in effect today.
IV. Discussion of the Witness Interview Process
In the past, MSHA has successfully conducted joint interviews with
the participation of the mine operator, the representative of the
miners, and the state inspection agency, and has found that such
procedures often result in the most complete account of an accident.
However, MSHA is concerned that in some circumstances the presence of
nongovernmental parties in the interviews can discourage witnesses from
being candid and forthcoming. Therefore, in some investigations MSHA
has conducted ``government participants only'' interviews, allowing
only state enforcement personnel to be present along with MSHA.
In recent years, this issue has been raised in various
circumstances. For example, MSHA investigators have had to determine
whether a victim's family member and attorney should be permitted to
attend witness interview sessions. In other instances, MSHA
investigators have found reason to conduct interviews with only MSHA
and state officials present, and the operator or the operator's
attorney have requested to serve as the personal representative for
employee witnesses. In similar situations, attorneys for the operator
have requested to observe the witness interview sessions. The issue of
``government participants only'' interviews has also been raised when
attorneys representing equipment manufacturers requested to participate
[[Page 40862]]
as observers at witness interview sessions. Also, on occasion several
persons from the involved interests have requested to be present at
witness interviews, creating a large group of participants.
V. Request for Comments
MSHA is specifically soliciting public comment on the Agency's
accident investigation policy. MSHA is particularly interested in
comments and suggestions for improving the witness interview phase of
the investigation.
As stated earlier, MSHA's goal is an accident investigation
procedure that provides a forum for collecting the most accurate
information about the causes of accidents. This information will be
used to develop an investigation report that provides the most
effective tool to the Agency and the public in preventing future
accidents.
Dated: August 8, 1995.
J. Davitt McAteer,
Assistant Secretary for Mine Safety and Health.
[FR Doc. 95-19786 Filed 8-9-95; 8:45 am]
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