[Federal Register Volume 63, Number 34 (Friday, February 20, 1998)]
[Notices]
[Pages 8692-8693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4451]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Mine Safety and Health Administration
The ``Significant and Substantial'' Phrase in Sections 104(d) and
(e) of the Federal Mine Safety and Health Act of 1977; Interpretative
Bulletin
AGENCY: Mine Safety and Health Administration (MSHA), Labor.
ACTION: Notice, request for comments.
-----------------------------------------------------------------------
SUMMARY: MSHA is announcing a public comment period concerning the
Interpretative Bulletin providing notice of the Secretary's
interpretation of the statutory phrase ``significant and substantial''
appearing in sections 104(d) and (e) of the Federal Mine Safety and
Health Act of 1977 (Mine Act). The Interpretative Bulletin was
published in the Federal Register on February 5, 1998 (63 FR 6012). The
Agency solicits public comment concerning the implementation and impact
of the Secretary's interpretation of the ``significant and
substantial'' phrase.
DATES: Comments must be submitted on or before April 21, 1998.
ADDRESSES: A copy of the Interpretative Bulletin may be obtained from
the Office of Standards, Regulations, and Variances, Mine Safety and
Health Administration, 4015 Wilson Boulevard, Room 627, Arlington,
Virginia 22203.
Comments on the Interpretative Bulletin may be transmitted by
electronic mail, fax, or mail, or dropped off in person at any MSHA
office. Comments by electronic mail must be clearly identified as such
and sent to this e-mail address: comments@msha.gov. Comments by fax
must be clearly identified as such and sent to: MSHA, Office of
Standards, Regulations, and Variances, 703-235-5551. Send mail comments
to: MSHA, Office of Standards, Regulations, and Variances, Room 631,
4015 Wilson Boulevard, Arlington, VA 22203-1984.
FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office
of Standards, Regulations, and Variances, Mine Safety and Health
Administration, 703-235-1910.
SUPPLEMENTARY INFORMATION: The purpose of the Interpretative Bulletin
is to provide notice of the Secretary's interpretation of the statutory
phrase ``significant and substantial'' appearing in sections 104(d) and
(e) of the Mine Act. The Secretary's Interpretative Bulletin noted that
``a violation must be found to be `significant and substantial' as long
as it is shown to present a hazard that is more than remote or
speculative.'' The Interpretative Bulletin
[[Page 8693]]
sets out a statement of purpose, and the Secretary's disagreement with
the Federal Mine Safety and Health Review Commission's interpretation
of the phrase ``significant and substantial.'' The document provides a
basis for the Secretary's interpretation based on the plain language of
the Mine Act and its legislative history, and the underlying purpose
and enforcement scheme of the Mine Act.
The ``significant and substantial'' designation is an important
part of the Mine Act's scheme for promoting miner safety and health
because a ``significant and substantial'' finding forms the basis for
possible withdrawal of miners under Section 104(d) of the Mine Act when
combined with an ``unwarrantable failure'' finding and the basis for a
possible withdrawal of miners under Section 104(e) when a pattern of
``significant and substantial'' violations is established. The
Secretary's decision to publish the Interpretative Bulletin was a
result of concern that, in certain cases, violations that present real
hazards to miner safety and health are not being determined to be
``significant and substantial.'' In Hobet, miners were exposed to dust
being generated by a high wall drill at a mine which in the past, had
been placed on a reduced dust standard due to high levels of silica.
Studies by the National Institute for Occupational Safety and Health
and x-ray surveillance efforts at surface coal mines have demonstrated
that such exposures result in serious and sometimes fatal lung disease.
In another instance, it was determined that the failure to follow the
mine evacuation plan and withdraw miners outby during a belt fire was
not ``significant and substantial'' (S&S) because the fire was quickly
extinguished. In a recently decided case, the administrative law judge
found that stuck rollers on a conveyor did not constitute an S&S
violation, even though there were accumulations of coal on rollers and
belt structures, rollers had been worn flat by rubbing, and rollers
were warm to the touch. However, because the Secretary did not
establish the exact amount of material in the accumulations the
violation was found to be non S&S. In the Secretary's view, such
violations clearly involve hazards that demand serious attention by
mine operators because they present real threats to miner safety and
health. Challenges to the S&S determinations made by inspectors on
citations such as these have led to the Secretary's conclusion that the
Commission's interpretation creates uncertainty about hazards to
miners' safety and health and, more importantly, misleads miners and
mine operators to underestimate the risk of injury, illness or death.
As the Secretary indicated in the Interpretative Bulletin, the
Secretary's interpretation is that a violation is ``significant and
substantial'' if it presents a hazard that is more than remote or
speculative in nature--that is, if it presents a hazard that has a
realistic possibility of occurring. The Secretary believes that
applying the ``significant and substantial'' designation to such
violations will result in a realistic application of the ``significant
and substantial'' clause and will serve to focus enforcement efforts on
those violations that pose a real threat to miner safety and health.
The Secretary's interpretation does not treat as ``significant and
substantial'' all violations that are non-technical in nature.
MSHA believes that the Interpretative Bulletin will have a
consequential impact on the mining community. MSHA is interested in
receiving comments from the mining public on the implementation,
application, and effect of the Secretary's interpretation on the mining
public. MSHA is especially interested in comments from miners, mine
operators, and other mine industry groups that may be affected by the
Secretary's interpretation. The Agency's solicitation of such public
comment does not indicate that the Secretary intends to or is required
to engage in notice-and-comment rulemaking with respect to her
interpretation of the ``significant and substantial'' phrase.
Dated: February 17, 1998.
J. Davitt McAteer,
Assistant Secretary for Mine Safety and Health.
[FR Doc. 98-4451 Filed 2-19-98; 8:45 am]
BILLING CODE 4510-43-P
