October 3, 2011
No Notice Required
MSHA’s disregard for rulemaking authority makes its way to the Review Commission.
By Patrick W. Dennison
The Mine Act’s requirement for notice and comment rulemaking provides a check on the power of the Mine Safety and Health Administration (MSHA) to create and enforce rules and regulations. Without such requirements, MSHA would have carte blanche to create laws and regulate the mining industry without the involvement of the public. MSHA regulates principally by rules promulgated pursuant to Section 101 of the Mine Act, 30 U.S.C. § 811. MSHA also issues implementing regulations pursuant to Section 508 of the Act, 30 U.S.C. § 957. Both Sections 101 and 508 provide the public with notice of the proposed standard or regulation, and afford the public with the opportunity to comment before the proposed standard or regulation becomes final. This development and subsequent implementation of such standards involves rigorous scrutiny and debate by MSHA and the mining industry through notice and comment rulemaking.
Yet, despite these established principles, MSHA consistently disregards these requirements and, through the guise of “interpretation,” in essence creates new laws without subjecting them to the scrutiny of rulemaking. A recent case pending appeal before the Federal Mine Safety and Health Review Commission (FMSHRC) involving continuity and resistance testing pursuant to 30 C.F.R. § 56.12028 highlights MSHA’s disregard in this respect and exemplifies an intent to regulate the mining industry without adhering to important rulemaking procedures.
From at least 1977 until 1993, MSHA did not require continuity testing of extension cords in compliance with Section 56.12028. This understanding was made explicit in MSHA’s 1988 Program Policy Manual (PPM), which established that “the annual test does not apply to grounding conductors in trailing cables, powers cables, and cords which provide power to portable or mobile equipment” [(emphasis added) PPM at 51-52 (1988)]. In 1994, a Program Policy Letter (PPL) was issued which, for the first time, sought to mandate testing, as prescribed in Section 56.12028, of cables, power cords, and cords that supply power to tools and portable or mobile equipment. The PPL guidance was subsequently incorporated into the PPM in 1996 and remains the same today.
The legitimacy of MSHA’s new requirement pertaining to continuity and resistance testing was addressed in a 1999 decision by Administrative Law Judge Hodgdon [Hibbing Taconite Co., 21 FMSHRC 346 (ALJ Hodgdon March 1999)]. In Hibbing Taconite, ALJ Hodgdon vacated 67 citations for alleged violations of 30 C.F.R. § 56.12028 and determined that the standard did not apply to extension cords, power cords, and cables. ALJ Hodgdon further found that the Secretary had inappropriately tried to characterize the 1994 PPL as an interpretive rule to avoid the procedural requirements of the Mine Act.
ALJ Hodgdon determined that the 1994 PPL was not an interpretive rule because it had the effect of amending a prior legislative rule. ALJ Hodgdon determined that notice and comment rulemaking was required to effect the substantive change to the rule because Section 56.12028 “clearly applies only to grounding systems,” and not to extension cords (emphasis added). He then ordered the Secretary to proceed with notice and comment rulemaking should she seek to apply Section 56.12028 to extension cords, power cords, and cables. The Secretary did not seek review of the decision. Nor did the Secretary heed ALJ Hodgdon’s decision. In the 12 years since the decision in Hibbing Taconite, the Secretary has not engaged in rulemaking to formally establish its enforcement predilections as a new standard. MSHA neither withdrew nor amended the PPL/PPM and, instead, reissued a PPM applying the standard in the exact manner specifically prohibited by the ALJ and Mine Act.
This overt disregard led to a case currently pending before the Federal Mine Safety and Health Review Commission. Relying primarily on the same arguments she did in Hibbing Taconite, the Secretary again sought to apply continuity and resistance testing to cables and power cords [Tilden Mining 33 FMSHRC 876 (ALJ Paez April 18, 2011)]. This time, however, the ALJ upheld the violations of Section 56.12028. In so doing, he found that extension and power cords are included in “grounding systems” and viewed the Secretary’s amended application of Section 56.12028 as only an interpretive change that did not amend the rule. He further held that, because such application was only an interpretative change, the Secretary was not required to comply with notice and comment rulemaking. The ALJ relied upon the same 1994 PPL and the 1996/2003 PPM as justification for the change in interpretation, despite the aforementioned policies providing entirely new requirements, and the prior decision in Hibbing Taconite. Moreover, in an attempt to distinguish ALJ Hodgdon’s holding in Hibbing Taconite, the ALJ suggested that a 14-year passage of time (since MSHA sought to apply Section 56.12028 to extension and power cords) provided the operator with notice of the Secretary’s change in the application of Section 56.12028.
The fundamental issue with this decision, however, is that the inclusion of extension cords and power cables is not specified in the rule, and it is not logically included within the rule. It is a substantive change best identified by the drastic change between the 1988 PPL and the 1994 PPL. It imposes entirely new obligations on operators to annually test, at the expense of significant man-hours, countless trailing cables, power cables, and extension cords not previously subject to Section 56.12028. Such an amendment required the Secretary to proceed with notice and comment rulemaking [Hibbing Taconite, 21 FMSHRC at 355]. This is consistent with Commission case law even where such change is held to only be interpretive. In Keystone Coal Mining Corp. [16 FMSHRC 6 (Rev. Comm. January 1994)], the Commission held that, where MSHA had consistently enforced a regulatory standard for 20 years, a subsequent effort to change its enforcement consistent with a new interpretation of the standard constituted a substantive, not interpretive, change requiring notice and comment rulemaking.
The outcome of this decision may drastically affect the Secretary’s ability to enact substantive rules without involving the industry. A decision permitting MSHA to avoid its rulemaking responsibilities will provide MSHA with a freer hand to regulate by fiat AM
Patrick W. Dennison is an associate in Jackson Kelly PLLC’s Pittsburgh office, practicing in the Occupational Safety and Health Practice Group. He can be reached at 412-434-8815 or firstname.lastname@example.org.