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Safety and Health in Mines Convention, 1995 (No. 176) - United States of America (RATIFICATION: 2001)

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The Committee takes note of the Government’s report and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).
The Committee notes the information in the Government’s report, in reply to its previous requests concerning Article 13(1)(a) (workers’ and representatives’ right to report accidents, dangerous occurrences and hazards), and 13(2)(c) (representatives’ right to have recourse to advisers and independent experts).
Article 13(2)(b)(ii) of the Convention. Right of safety and health representatives to monitor and investigate safety and health matters. The Committee notes the information provided by the Government, in response to the Committee’s previous request on the right of safety and health representatives to monitor and investigate safety and health matters. In particular, the Government states that miners’ representative are entitled to receive various notices and to participate in the health and safety process at the mine. The Committee notes that, according to the Government, such representatives have the right to receive information on a number of topics, including on hazardous waste (30 C.F.R. s47.53) and training plans (30 C.F.R. ss48.3(d) and 48.23(d)). The Committee requests the Government to provide further information on the manner in which safety and health representatives can exercise their right to participate in the health and safety process at the mine in practice, and to indicate any provisions in national laws and regulations setting out a right for those representatives to investigate safety and health matters, in accordance with Article 13(2)(b)(ii) of the Convention.
Article 14(c). Duty of workers to report situations which could present a risk. The Committee notes the Government’s indication that the Federal Mine Safety and Health Act 1977 (the Mine Act), as amended, does not specifically require miners or their representatives to report any particular situation. The Government also refers to the Mine Safety and Health Administration (MSHA)’s Guide to Miners’ Rights and Responsibilities Under the Federal Mine Safety and Health Act of 1977, which states that miners have the responsibility to notify the operator, supervisor, or other responsible person, when refusing to work in unsafe or unhealthy conditions. The Committee recalls that, under Article 14(c) of the Convention, workers shall have the duty, under national laws and regulations, and in accordance with their training, to report forthwith to their immediate supervisor any situation which they believe could present a risk to their safety or health or that of other persons, and which they cannot properly deal with themselves. The Committee requests the Government to provided further information on the implementation of Article 14(c) of the Convention, and in particular to indicate the measures taken or envisaged to ensure that the abovementioned duty of workers is stated in national laws and regulations.
Application of the Convention in practice. The Committee notes the detailed statistical information provided by the Government, in response to its previous request, on the application of the Convention in practice. In this respect, the Government indicates that between June 2014 and May 2019, the MSHA received 10,784 hazardous conditions complaints and 747 complaints for retaliation or discrimination. The Committee also notes the Government’s indication that the MSHA issued 98,000 citations and orders in 2018, which included 180 imminent danger orders, and 99,364 citations and orders in 2019, including 191 imminent danger orders. The Government further indicates that, in 2019, the fatal injury rate was of 0.0095 injuries per 200,000 hours worked (a decrease from 0.0098 in 2018), and that the rate for all injuries was of 2.04 injuries per 200,000 hours worked (a decrease from 2.05 in 2018). Taking due note of the decreasing injury rate, the Committee requests the Government to continue to provide information on the application of the Convention in practice, including on inspection activities, hazardous conditions complaints received and work-related accidents and diseases in the mining sector. The Committee also requests the Government to continue to provide information on measures taken or envisaged to address the causes of such accidents and diseases. In addition, the Committee requests the Government to provide further information on the implementation of Article 13(4) of the Convention in practice, to ensure that workers and their safety and health representatives can exercise the OSH rights set out in Article 13(1) and (2) without discrimination or retaliation. In this respect, it requests further information on the follow-up given to the complaints of retaliation or discrimination received, including the number of investigations undertaken and the outcome of these investigations (including the number and types of penalties applied).

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The Committee notes the information provided by the Government in reply to its previous comment regarding the effect given to Articles 9(c), 13(1)(f) and 13(2)(d) of the Convention.
Legislative developments. The Committee notes the detailed information provided by the Government on the final rules adopted by the Mine Safety and Health Administration (MSHA) between 2008 and 2014 which include the following: “Refuge Alternatives for Underground Coal Mines” (73 F.R. 80656); “Coal Mine Dust Sampling Devices” (75 F.R. 17512); “High-Voltage Continuous Mining Machine Standard for Underground Coal Mines” (75 F.R. 17529); “Maintenance of Incombustible Content of Rock Dust in Underground Coal Mines” (76 F.R. 35968); “Examinations of Work Areas in Underground Coal Mines for Violations of Mandatory Health and Safety Standards” (77 F.R. 20700); “Pattern of Violations” (78 F.R. 5056); and “Lowering Miners’ Exposure to Respirable Coal Mine Dust, Including Continuous Personal Dust Monitors” (79 F.R. 24814). It also notes the Government’s indication that prior to the adoption of these rules, stakeholders, including employers’ and workers’ organizations, were consulted through public hearings and seminars.
Article 13(1)(a). Right of workers and their safety and health representatives to report accidents, dangerous occurrences and hazards. With reference to its previous comment, the Committee notes from the Government’s report that workers and their representatives may report hazardous conditions to the MSHA through various means including an anonymous hotline and online reporting. However, it notes that the report does not provide information on the manner in which it is ensured that workers and their safety and health representatives also have the right to report accidents, dangerous occurrences and hazards to the employer, as prescribed by this Article of the Convention. Therefore, the Committee requests the Government to provide information on procedures established to allow workers and their safety and health representatives to report accidents, dangerous occurrences and hazards to their employer, in accordance with Article 13(1)(a) of the Convention.
Article 13(2)(b)(ii). Right of safety and health representatives to monitor and investigate safety and health matters. Article 13(2)(c). Right of safety and health representatives to have recourse to advisers and independent experts. With reference to its previous comment, the Committee notes that the Government’s report does not contain information on the effect given to these Articles of the Convention. Therefore, the Committee once again requests the Government to provide information on the manner in which it ensures that safety and health representatives have a right to:
  • – monitor and investigate safety and health matters (Article 13(2)(b)(ii)); and
  • – have recourse to advisers and independent experts (Article 13(2)(c)).
Article 14(c). Duty of workers to report situations which could present a risk. The Committee notes the Government’s statement that there is no affirmative duty under the Mine Act for miners or their representatives to report any particular situation. The Committee wishes to recall that under Article 14 of the Convention, workers have the duty to report forthwith situations which they believe could present a risk to their safety and health, or that of other persons. In this respect, it wishes to emphasize the importance of such reporting so that the necessary preventive or remedial measures can be adopted and quickly implemented, with a view to guaranteeing the safety and health of all workers at the mine. The Committee therefore requests the Government to take all the necessary steps to ensure that workers have a duty to report forthwith to their supervisor situations which they believe could present a risk, in accordance with this Article of the Convention.
Application in practice. The Committee notes that the MSHA has jurisdiction over approximately 1,700 coal mines employing 123,000 miners and approximately 12,000 metal and non-metal mines, employing 250,000 miners. The Committee also notes that in 2013, the MSHA issued 119,000 citations and orders, of which 1,400 citations were for failure to comply with mandatory safety and health standards, 1,000 training-related orders and 300 imminent danger orders. It further notes that between 2009 and 2014, the MSHA received 11,640 hazardous conditions complaints and 955 complaints for retaliation or discrimination. As regards work-related accidents, the Committee notes from the detailed statistics available on the MSHA website that in 2014, the fatal injury rate was 0.0142 injuries per 200,000 hours worked (0.0132 in 2013), while the total injury rate was 2.43 injuries per 200,000 hours worked (2.49 in 2013). It also takes note of the 2012 review of fatal accidents in metal and non-metal mines which provides statistics on fatalities broken down by commodity, mine size, accident classification, occupation, age, experience, etc., and identifies several causes thereof, such as failure to provide task training, to conduct examinations or risk assessment, to instruct on policies, procedures and controls, to provide personal protective equipment and to maintain equipment. The Committee requests the Government to continue to provide information on the application of the Convention in practice, including information on inspection activities, hazardous conditions complaints received and work-related accidents and diseases in the mining sector (number, nature and causes), as well as on measures, taken or envisaged, to address the causes of such accidents and diseases.

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The Committee notes with interest the detailed information provided by the Government in its latest report indicating recent legislative amendments, including the Mine Improvement and New Emergency Response Act of 2006 (MINER Act), and regulatory changes from 2005 to 2008 brought about by decisions of the Mine Safety and Health Administration (MSHA), which give further effect to the provisions of the Convention. It notes, in particular, the reformulated requirement for each underground coalmine to adopt a written emergency response plan (ERP) in accordance with Article 8 of the Convention, and that such plans have been approved for all underground coalmines with a few exceptions. The Committee also notes the increased penalties and sanctions imposable for violations of the Act. The Committee further notes the responses to its comments provided by the Government indicating further effect given to Articles 7(a), (c), (d) and (e), 10(e), and 13(3)(a) of the Convention. The Committee asks the Government to continue to provide information on any relevant legislative or other measures undertaken with regard to the Convention.

Article 9, subparagraph (c). Provision of protective equipment, necessary clothing and other facilities. The Committee notes the information provided by the Government in its reports indicating that all mine operators are required to provide miners with noise protection when noise exposure equals or exceeds the prescribed action level, and that such equipment shall be provided at no cost to the miner (30 C.F.R s62.160). The Committee further notes that special protective equipment and special protective clothing must be provided (30 C.F.R ss56.15006 and 57.15006). However, the Government does not state whether other types of protective equipment (outside of noise protection), necessary clothing or other facilities, are to be provided at no cost to the miner. The Committee requests the Government to provide further information in this regard and to indicate what measures have been taken, or are envisaged, to give full effect to Article 9(c) of the Convention.

Article 13. Right of workers to report accidents, dangerous occurrences and hazards (Article 13, paragraph 1(a)) and to collectively select safety and health representatives (Article 13, paragraph 1(f)); and rights of safety and health representatives (Article 13, paragraphs 2(a), 2(b)(ii), 2(c) and 2(d)). The Committee notes the information provided by the Government indicating that section 103 of the Federal Mine Safety Act 1977 (the Mine Act) gives the miners’ representative or, if there is no such representative, a miner the right to obtain an immediate inspection by giving notice whenever he has reasonable grounds to believe that violation of a mandatory health or safety standard exists. The Committee also notes that the Government has indicated that under the National Labor Relations Act workers are guaranteed the right to bargain collectively through representatives of their choosing. The Committee notes that this information addresses mainly the effect given to Article 13(1)(b) and (f) but does not seem to address how effect is given to the other provisions of Article 13 noted above. The Committee therefore asks the Government to provide further information regarding relevant laws or regulations ensuring that workers have the right,

–           regardless of the existence of a workers’ representative, to report accidents, dangerous occurrences and hazards to the employer and to the competent authority (Article 13(1)(a));

–           to collectively select safety and health representatives (Article 13(1)(f)).

The Committee also asks the Government to provide further information regarding relevant laws or regulations ensuring that safety and health representatives have the right to:

–           represent workers on all aspects of workplace safety and health, including the right to report accidents, dangerous occurrences and hazards to the employer and to the competent authority (Article 13(2)(a));

–           monitor and investigate safety and health matters (Article 13(2)(b)(ii));

–           have recourse to advisers and independent experts (Article 13(2)(c));

–           consult with the employer in a timely fashion on safety and health matters, including on policies and procedures (Article 13(2)(d)).

Article 14, subparagraph (c). Duty of workers to report risky situations. The Committee notes the Government’s statement that under the Mine Act mine operators, with the assistance of the miners, have the primary responsibility to prevent the existence of unsafe and unhealthy mine conditions, and that miners are protected from discrimination or reprisal for making complaints to MSHA, or the mine operator, regarding safety and health violations. The Committee further notes the information on regulations providing for training of mineworkers. The Committee asks the Government to indicate whether laws or regulations ensure that workers have a duty to report forthwith to their immediate supervisor any situation which they believe could present a risk to their safety and health, or that of other persons, and which they believe they cannot properly deal with themselves.

Part V of the report form. Application in practice. The Committee asks the Government to give a general appreciation of the manner in which the Convention is applied in the country and attach extracts from inspection reports and, where such statistics exist, information on the number of workers covered by the legislation; the number and nature of the contraventions reported; and the number, nature and cause of accidents reported.

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1. The Committee notes with interest the comprehensive report of the Government. It requests the Government to provide clarifications and supplementary information in respect of the following points.

2. Article 7(a) of the Convention. Safe design and construction of mine. Please indicate the measures generally taken by employers to ensure that the mine is designed and constructed so as to provide conditions for safe operation and a healthy working environment.

3. Article 7(b). Decommissioning of mines and maintenance and operation of metal and non-metal mines. Please indicate the measures taken by employers to ensure that (a) mines are decommissioned in such a way that workers can perform the work assigned to them without endangering their safety and health or that of other persons and (b) metal and non-metal mines are maintained and operated in such a way that workers can perform the work assigned to them without endangering their safety and health or that of other persons.

4. Article 7(c). Maintenance of stability of the ground. The Committee notes that the Government has indicated that the regulations in 30 Code of Federal Regulations (C.F.R.), sections 56.3401, 57.3401 and 30 C.F.R., section 56.3131 prescribe measures to maintain the stability of the ground in surface coalmines. Please clarify whether such requirements are also applicable in respect of surface metal and non-metal mines and describe the measures prescribed for underground coal and metal and non-metal mines.

5. Article 7(e). Monitoring, assessment and regular inspection of the working environment. The Committee notes that the Government has indicated that the monitoring, assessment and regular inspection of the working environment in coalmines is required by several legislative provisions (30 United States Code (U.S.C.), section 863(d)(1), (e); 30 C.F.R., section 75.362 (a)(1), (b) and 30 C.F.R., section 77.1713). Please indicate the measures to be taken by employers in metal and non-metal mines to ensure the monitoring, assessment and regular inspection of the working environment to identify the various hazards to which the workers may be exposed and to assess their level of exposure.

6. Article 9(c). Provision of protective equipment and protective clothing. The Committee notes that the Government has indicated that the issue of the employer bearing the cost of protective equipment or clothing has not been addressed in the regulations. Therefore, please clarify whether in practice, the employer is required to provide and maintain suitable protective equipment and protective clothing, at no cost to the worker.

7. Article 10(e). Reports on dangerous occurrences. The Committee notes that the Government has indicated that the regulations in 30 C.F.R., Part 50 require notification to the Mine Safety and Health Administration (MSHA) of accidents, injuries and illnesses. Please clarify whether operators are also required to make reports to the competent authority in respect of dangerous occurrences.

8. Article 13, paragraph 1(a). Right of workers to report accidents, dangerous occurrences and hazards. Please indicate the specific provisions of legislation that guarantee to workers the right to report accidents, dangerous occurrences and hazards to the competent authority.

9. Article 13, paragraph 1(f). Right of workers to collectively select safety and health representatives. The Committee notes that the Government has indicated that the Mines Act authorizes the MSHA inspector to consult with a reasonable number of miners concerning matters of health and safety, in mines where there is no authorized miners’ representative (30 U.S.C., section 813(f)). It also notes that the Government has indicated that while the right referred to in Article 13, paragraph 1(f), is not granted to workers under the Mines Act or its regulations, they could have such a right under a collective bargaining agreement. The Committee wishes to draw the attention of the Government to the requirement of Article 13, paragraph 1, of the Convention that the rights referred to therein should be specifically guaranteed under national laws and regulations. Therefore, please indicate the measures taken or envisaged to grant to miners, the right to collectively select safety and health representatives under national laws and regulations.

10. Article 13, paragraph 2(a) to (f). Rights of safety and health representatives. The Committee notes that the Government has indicated that specific conditions and rights providing even greater protection are often negotiated within collective bargaining agreements between operators and unions. It has also indicated that a representative of miners is guaranteed the right to participate in certain inspections and investigations of the mine areas, to receive notices of accidents and dangerous occurrences and citations issued for violations of the Mine Act and to consult with the MSHA on safety and health matters (30 U.S.C., section 813). The Committee wishes to draw the attention of the Government to the requirement of Article 13, paragraph 2, of the Convention that the rights referred to therein should be specifically guaranteed under national laws and regulations. Therefore, please indicate the measures taken or envisaged to grant to the safety and health representatives of miners, all the rights mentioned in Article 13, paragraph 2, under national laws and regulations.

11. Article 13, paragraph 3(a). Procedures for exercise of workers’ rights. Please indicate the measures taken or envisaged to ensure that the procedures for the exercise of the rights referred to in paragraphs 1 and 2 of Article 13 of the Convention are specified in national laws and regulations.

12. Article 14(c). Duty of workers to report risky situations. Please indicate the specific provisions of national legislation that grant to workers, the right to report forthwith to their immediate supervisor any situation which they believe could present a risk to their safety and health or that of other persons, and which they believe they cannot properly deal with themselves.

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