Office of Inspector General Reports Limited Use of MSHA Section 104(b) Withdrawal Orders Despite Widespread Overdue Abatement (2013–2019)

OIG findings show many overdue abatements and relatively few 104(b) withdrawal orders, sharpening attention on when missed deadlines lead to withdrawal versus administrative handling. This matters for triaging which citations could halt production at your sites. The core uncertainty is how strictly MSHA will limit extensions post-OIG review.

Background

OIG examined 706,007 citations and safeguards issued between January 1, 2013 and September 30, 2019, identifying substantial overdue abatements and limited use of withdrawal orders during that period Ogletree Deakins. Of those, 218,354 were terminated after the abatement deadline, with MSHA noting inspector inability to return before the deadline as the primary reason for overdue terminations Ogletree Deakins. MSHA verified 199,802 of the overdue conditions as corrected within 13 days of the original deadline Ogletree Deakins. During a time when more than 50,000 violations were overdue by seven or more days, MSHA issued just over 3,500 Section 104(b) withdrawal orders Ogletree Deakins.

Key Provisions

• Section 104(b) authority: MSHA can issue a Section 104(b) withdrawal order when an operator fails to abate a violation within the deadline fixed in the citation and MSHA finds no basis for extending the abatement timeframe MSHA.
• Part 50 technical orders: Part 50 employment and injury reporting failures are categorized as technical orders of withdrawal without an underlying physical hazard and are designated as ‘No Area Affected’ MSHA.
• Extension posture: MSHA generally is amenable to extending abatement deadlines when the operator is making good-faith efforts to correct the condition and personnel are not exposed to any hazard Ogletree Deakins.
• Scope of overdue abatements: Of 706,007 citations/safeguards reviewed by OIG from 2013–2019, 218,354 were terminated after the deadline, reflecting verification and scheduling challenges Ogletree Deakins.
• Verification delays: The primary reason MSHA cited for overdue terminations was inspectors’ inability to return to the mine before the deadline to verify abatement, and 199,802 overdue items were verified as corrected within 13 days of the deadline Ogletree Deakins.
• Observed issuance levels: MSHA issued over 3,500 Section 104(b) orders even though more than 50,000 violations were overdue by seven or more days during part of the review period Ogletree Deakins.

Decision Framework

Three threshold questions determine shutdown exposure at your 40 sites: (1) Is the missed deadline tied to a physical condition that could expose miners, or is it an administrative Part 50 reporting duty? (2) Is there a defensible basis for extending abatement? (3) Has abatement been achieved but verification is pending due to inspector availability?

• If a missed abatement deadline involves a physical condition and MSHA finds no basis to extend, then a Section 104(b) withdrawal order can issue, creating immediate withdrawal risk for the noncompliant condition MSHA.
• If the missed deadline is a Part 50 employment or injury reporting failure, then any 104(b) would be a technical order designated ‘No Area Affected,’ which does not withdraw a production area MSHA.
• If abatement is complete but overdue solely because an inspector could not return to verify, note that this has been the primary reason for overdue terminations historically, and most such items were verified as corrected within 13 days; however, 104(b) issuance remained comparatively limited during the review period Ogletree Deakins.
• Before deciding, confirm: your live inventory of open citations by type (physical condition vs. Part 50 reporting), each abatement due date, and whether an extension has been requested or granted with evidence of good-faith efforts and non-exposure Ogletree Deakins.

What We’re Monitoring

• Any MSHA policy updates or Handbook revisions that operationalize OIG findings and potentially narrow abatement extensions; OIG’s findings have introduced new pressures on MSHA enforcement Ogletree DeakinsMSHA.
• District practices on verifying abatement where inspectors cannot return by the deadline, given that such delays were the primary driver of overdue terminations in the OIG’s review period Ogletree Deakins.
• Any clarification expanding or limiting categories treated as technical 104(b) ‘No Area Affected’ beyond Part 50 through future Handbook updates, using the current classification as the baseline MSHA.