The American Coal Company

Plain-English summary

American Coal operated an underground coal mine with diesel-powered personnel carriers whose engines had approval tags fabricated by the operator rather than supplied by the engine manufacturer. The Commission majority held that the approval marking required by 30 C.F.R. § 7.90 had to come from the manufacturer because only the manufacturer could verify that a particular engine matched the specifications supporting MSHA approval. The Commission affirmed the ALJ's decision and the citations under 30 C.F.R. § 75.1909(a)(1), while Chairman Verheggen dissented and would have vacated them because the regulation did not expressly identify the manufacturer as the source of the marking. The majority's separate opinions used different reasoning, with one relying on plain meaning and the other on deference to the Secretary's interpretation.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1909(a)(1) and 7.90
• Outcome: The Commission affirmed the ALJ's decision and the two challenged citations.
• Key point: An operator cannot substitute its own tag for the manufacturer's approval marking when it cannot verify that the specific engine conforms to the approved design.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                      June 26, 2002

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket Nos. LAKE 2000-111-R
ADMINISTRATION (MSHA) : LAKE 2000-112-R
:
v. :
:
THE AMERICAN COAL COMPANY :

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners1

                                          DECISION

BY: Jordan and Beatty, Commissioners

    These are contest proceedings arising from two citations issued by the Department of

Labor’s Mine Safety and Health Administration (“MSHA”) against American Coal Company
(“American”), pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (1994) (“Mine Act” or “Act”), and alleging violations of 30 C.F.R. § 75.1909(a)(1).2 In the

   1
     Commissioner Riley participated in the consideration of this matter, but his term

expired before issuance of this decision. Pursuant to section 113(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been
designated to exercise the powers of the Commission.
2
This regulation requires, among other things, that diesel powered equipment have “an
engine approved under subpart E of Part 7 . . .” Reference to that subpart brings us to the
requirement actually at issue in this proceeding, 30 C.F.R. § 7.90, which provides:

           Each approved diesel engine shall be identified by a legible and
           permanent approval marking inscribed with the assigned MSHA
           approval number and securely attached to the diesel engine. The
           marking shall also contain the following information:

                  (a) Ventilation rate.
                  (b) Rated power.
                  (c) Rated speed.
                  (d) High idle.

                                    24 FMSHRC 542

Page 2

proceedings below, American and the Secretary of Labor each moved for summary decision.
Administrative Law Judge Michael Zielinski found in the Secretary’s favor and affirmed the
citations. 23 FMSHRC 505 (May 2001) (ALJ). American filed a petition for discretionary
review with the Commission challenging the judge’s decision.

                                           I.

                          Factual and Procedural Background

     American operates the Galatia Mine, a large underground coal mine, in Harrisburg,

Illinois. 23 FMSHRC at 505. In the mine, American uses diesel-powered personnel carriers. Id.
American Isuzu Motors, Inc. (“Isuzu”) manufactured the diesel engines in the carriers. Id. at

506. These proceedings concern citations MSHA issued to American because the approval
     markings on the diesel engines were not supplied by the manufacturer. Id. at 507.

     On October 25, 1996, MSHA published final rules establishing new safety standards (30
     C.F.R. §§ 75.1900-75.1916) and an approval process (30 C.F.R. §§ 7.81-7.108) for diesel
     engines and equipment in underground coal mines.3 61 Fed. Reg. 55412.4 Under 30 C.F.R.
     § 75.1909(a)(1), non-permissible diesel-powered equipment must be equipped with an engine
     approved under 30 C.F.R. Part 7. Id. Section 7.90 further requires an approval marking to be
     placed on all equipment approved by MSHA. Id.

     Isuzu applied for MSHA approval under these new regulations for diesel engines with
     model numbers QD 100-301 and C240MA, which were in use at the Galatia Mine. 23 FMSHRC
     at 506 & n.1. As part of the approval process, Isuzu was required by the regulations to submit
     engine specifications, design drawings, and test results. See 30 C.F.R. §§ 7.83-7.89; S. Resp. to

                   (e) Maximum altitude before deration.
                   (f) Engine model number.
     

     3
     The new Part 7 approval procedure is divided into two subparts. Subpart E addresses
     diesel engines used in areas where permissible electric equipment is required (Category A
     engines) and diesel engines used in areas where non-permissible electric equipment is allowed
     (Category B engines). 30 C.F.R. § 7.81. Subpart F addresses diesel power packages used in
     areas where permissible electric equipment is required. 30 C.F.R. § 7.95. See generally 61 Fed.
     Reg. at 55413, 55415. Only Subpart E is involved in this proceeding. In addition to these
     subparts, Subpart A (30 C.F.R. §§ 7.1-7.9), which specifies general requirements for MSHA
     approval of equipment in underground mines, is applicable to diesel engines. See 30 C.F.R.
     § 7.81.
     4
     The equipment in this proceeding (which is classified under MSHA regulation as “non­
     permissible”) had been used at the Galatia Mine well before the effective date of the new
     approval process. 23 FMSHRC at 506.

                                    24 FMSHRC 543
     

Page 3

Mot. for Sum. Dec., Att. 4 at 1-2 (Decl. of Gene Biron, Isuzu Mgr. of Application Eng.) (“Biron
Decl.”). In order for Isuzu to determine whether a particular engine was manufactured in
accordance with the design drawings and specifications upon which MSHA’s approval was
based, it had to compare the serial number on the engine with its records of the design
specifications to which the engine was manufactured. 23 FMSHRC at 507. Equipment owners
were required to fill out a form that included the serial number of the engine together with other
critical characteristics. Biron Decl. at 3. Isuzu would compare the information in this form with
the approval requirements for the approved engine. Id. at 4. If the engine met the requirements,
Isuzu would record the serial number and issue an approval tag. Id.

    American was dissatisfied with the quality and cost of Isuzu’s approval tags, and

American officials had extensive discussions with MSHA concerning Isuzu’s approval tags and
American’s development of its own approval marking. 23 FMSHRC at 506. On April 1, 2000,
MSHA issued Procedure Instruction Letter I00-V-2 (“PIL”), to address mine operator complaints
about inadequate diesel engine approval markings that were being supplied by various engine
manufacturers. Id.; PIL at 1. The PIL stated: “The approval marking is supplied by the engine
manufacturer.” PIL at 1. In the case of an approval marking that had become detached or
illegible, the PIL instructed mine operators to verify that the diesel engine is approved, obtain a
replacement approval marking from the engine manufacturer (that could be kept on file in the
mine office if the approval marking were of the same design as the prior marking), and notify
MSHA of the problem. MSHA would then require the manufacturer to develop an improved
approval marking that is legible and permanent as required by section 7.90. Id.

     American did not obtain Part 7 approval markings from Isuzu. 23 FMSHRC at 507.

Instead, American’s maintenance department purchased a labeling machine to fabricate tags that
it attached to its diesel engines. Id. American was able to ascertain from public records
maintained by MSHA that Isuzu-manufactured engines with the same model number as those in
this proceeding had been approved by MSHA. Id.; see S. Mot. for Sum. Dec., Att. A. However,
American did not have access to the documentation that was the basis for MSHA approval of the
engines. 23 FMSHRC at 506, 508. Nor did American have access to Isuzu’s records that
reflected which engines with a specified serial number of a particular model were manufactured
according to the design drawings and specifications that were submitted to MSHA. Id. at 508.
Consequently, American could not determine whether its engines had, in fact, been approved. Id.

    In June 2000, MSHA issued two citations charging that two Isuzu diesel engines, one

used in a mantrip and another in a personnel carrier, were not being maintained in accordance
with the regulations because a legible and permanent approval marking required by section 7.90
was installed but had not been supplied by the engine manufacturer. Id. at 507. American
contested the citations, and both American and the Secretary moved for summary decision. Id. at
505.

   The judge granted the Secretary’s motion for summary decision and dismissed the notices

of contest. Id. at 512. The judge noted that section 7.90 was silent regarding the source of the

                                    24 FMSHRC 544

Page 4

approval marking and that this silence created ambiguity regarding permissible sources for the
approval marking. Id. at 509-11. He held that the Secretary’s interpretation was reasonable and
more consistent with the safety purposes of the Act than the operator’s interpretation because an
operator cannot determine if a particular engine is covered by an MSHA approval. Id. at 511.
The judge found that only the manufacturer can ascertain whether an engine was manufactured
according to the design drawings and specifications upon which MSHA approval was based. Id.
He further noted that, even though American could determine that the engine model that it owned
was approved, it could not determine whether its particular engines had been manufactured
according to the design and specifications upon which the approval was obtained. Id. Therefore,
the judge concluded that an MSHA inspector attempting to determine whether a mine met
applicable ventilation requirement for dissipating emissions could not rely on approval markings
supplied by American. Id. The judge rejected American’s position that it did not have notice of
the Secretary’s interpretation, noting that the Secretary’s position was consistent with the long-
standing approval scheme for mining equipment, that MSHA representatives had discussed this
requirement with American, and that American was specifically put on notice by the PIL. Id. at
512.

                                           II.

                                       Disposition

    The only issue in this case, as in the companion case, Freeman United Coal Mining Co.,

24 FMSHRC ___, No. LAKE 2000-102-R (June 24, 2002), is whether the approval marking
required by 30 C.F.R. § 7.90 must be supplied by the engine manufacturer. Thus, disposition of
this case turns on the meaning of section 7.90.

   Commissioners Jordan and Beatty, writing separately, vote to affirm the judge. The

separate opinions of the Commissioners follow.5

   5
     Chairman Verheggen, in an opinion dissenting from the result reached by his

colleagues, votes to reverse the judge.

                                    24 FMSHRC 545

Page 5

Commissioner Jordan, affirming:

    This case arose when American Coal Company (“American”) was cited for failing to

comply with the requirement of 30 C.F.R. § 7.90 that “[e]ach approved diesel engine shall be
identified by a legible and permanent approval marking . . . .”1 Although every one of the diesel
engines observed by the MSHA inspector bore a tag containing the information required by
section 7.90, MSHA did not consider the tags to be approval markers as required by 30 C.F.R.
§ 7.90 because they had been produced by American instead of the engines’ manufacturer,
American Isuzu Motors, Inc. (“Isuzu”).

    American contends that section 7.90’s failure to specifically identify the manufacturer as

the source of the approval marking entitles American to affix the requisite information to the
engine. 23 FMSHRC 505, 508 (May 2001) (ALJ). The Secretary argues that section 7.90 cannot
be read in isolation from the regulations governing MSHA’s approval process, and, because that
process permits only the manufacturer to apply for and secure the approval that allows the diesel
engine to be used in a coal mine, only a designation by that manufacturer can suffice as an
approval marker under section 7.90. Id. at 509. The judge held that the Secretary’s interpretation
that the approval marking must be issued by the manufacturer was reasonable. Id. at 511.
Because I agree with the judge’s conclusion, I join in affirming his decision denying American’s
motion for summary judgement and granting the Secretary’s motion. I write separately, though,
because my view that the citations should be affirmed is based on the plain meaning of the
standard.

    In order to determine the “plain language” or “plain meaning” of a regulatory

requirement, we must consider the ordinary meaning of the terms used. Western Fuels–Utah,
Inc. 11 FMSHRC 278, 283 (Mar. 1989). The ordinary understanding of the phrase “approval
marking” is that it refers to a designation placed on an item, the purpose of which is to provide
assurance of that item’s conformity with certain requirements or specifications. It stands to
reason that only someone who can reliably ascertain the item’s conformity with those standards

   1
       Section 7.90 provides:

            Each approved diesel engine shall be identified by a legible and
            permanent approval marking inscribed with the assigned MSHA
            approval number and securely attached to the diesel engine. The
            marking shall also contain the following information:

                   (a)     Ventilation rate.
                   (b)     Rated power.
                   (c)     Rated speed.
                   (d)     High idle.
                   (e)     Maximum altitude before deration.
                   (f)     Engine model number.

                                    24 FMSHRC 546

Page 6

is in a position to place a mark on the item signifying its approved status. A marking affixed to
an object that does not authoritatively verify that object’s compliance with the pertinent standards
can hardly be considered an “approval marking” as that term would be commonly understood.
Therefore, the plain language of section 7.90 does in fact preclude the use of approval markings
supplied by an entity not in a position to authoritatively verify the diesel engine’s compliance
with the relevant design and performance standards.

    The relevant question before us then becomes: “Did the Secretary correctly conclude that

only the manufacturer could authoritatively ascertain the diesel engines’ approved status?” A
review of the standards governing MSHA’s approval process requires that this question be
answered with an emphatic “yes.” I note at the outset that the use of approval markings on
mining equipment is not a recent phenomenon. Indeed, as MSHA stated in the preamble to the
diesel regulations, “[a]pproval markings to identify equipment appropriate for use in mining have
been used for more than 85 years, and are routinely relied upon by users of mining equipment as
well as state and federal inspection authorities.” 61 Fed. Reg. 55412, 55422 (Oct. 25, 1996).2

     The approval process that permits a diesel engine to be used in an underground coal mine

is set forth in 30 C.F.R. Part 7. Subpart A explains the general procedures that apply in obtaining
approval, not only for diesel engines, but for numerous other products that are used in
underground mines. The only applicant recognized in the approval process is “[a]n individual or
organization that manufactures or controls the assembly of a product . . . .” 30 C.F.R. § 7.2. The
regulations go on to state that each application must contain “[t]he documentation specified in
the appropriate subpart of this part.” 30 C.F.R. § 7.3(c)(2).3 The requirements for diesel engines
are located at subpart E, 30 C.F.R. §§ 7.81-7.92, and reference to that section reveals extensive
“performance and exhaust emission requirements.” 30 C.F.R. § 7.81. Applicants are required to
perform tests on the diesel engines and it takes several pages of regulations (which include
diagrams and mathematical formulas) to describe how those tests must be carried out and what
kind of testing equipment must be used. See 30 C.F.R. §§ 7.86-7.89. As part of the approval
process MSHA also requires a “certification by the applicant” that the product conforms with

   2
      Approval markings are required for a variety of equipment used in mines including:

brattice cloth and ventilation tubing, 30 C.F.R. § 7.29; multiple-shot blasting units, 30 C.F.R.
§ 7.69; electric motor assemblies, 30 C.F.R. § 7.309; and electric cables, signaling cables, and
splices, 30 C.F.R. § 7.409.
3
It is undisputed that American does not have access to the approval documentation
submitted by Isuzu on which the MSHA approval was based. 23 FMSHRC at 508.

                                    24 FMSHRC 547

Page 7

design requirements4 and that the applicant will perform the required quality assurance functions.
30 C.F.R. § 7.3(f).

    That it is only the applicant who is authorized to produce approval markings finds further

support in the warning that “[a]n applicant shall not advertise or otherwise represent a product as
approved until MSHA has issued the applicant an approval.” 30 C.F.R. § 7.5(a). An approval is
defined as “[a] document issued by MSHA which states that a product has met the requirements
of this part and which authorizes an approval marking identifying the product as approved.” 30
C.F.R. § 7.2. Further support for the proposition that only the manufacturer is entitled to produce
the approval marking is found at 30 C.F.R. § 7.6(c), which provides: “Applicants shall maintain
records of the initial sale of each unit having an approval marking.” Obviously, this regulation
could not be carried out if entities other than the applicant produced approval markings. In
addition, MSHA takes steps to protect the integrity of approval markers even after the approval is
issued. Approved products are subject to periodic audits and the approval holder must, at
MSHA’s request, make the product available to the agency at no charge to enable it to carry out
those audits. See 30 C.F.R. § 7.8(a)-(b). In sum, the document that entitles an approval marker
to be placed on a product is issued by MSHA to the applicant and, under the regulations,
applicants are limited to the manufacturer. There is no indication that the end-user of the product
is authorized to produce an approval marking.5

    The Secretary’s determination that Isuzu, not American, must supply the approval

marking required under section. § 7.90 is amply supported by the regulations governing her
approval process. Indeed, it is evident that permitting any entity other than the manufacturer to
tag equipment as approved would compromise the integrity of the approval process, not only for
diesel engines, but for the many other kinds of equipment that require such designation.

    Contending that “the meaning of an explicit term is not at issue,” slip op. at 15, my

dissenting colleague proceeds to render the term “approval marker “ meaningless. Under
Chairman Verheggen’s analysis, the regulation’s failure to specify the producer of an approval
marker requires the Secretary to accept any label, affixed to an engine by any person, so long as

   4
      As the judge concluded, “[e]ven though American Coal could determine that engines of

that model had been approved, it could not determine whether its engines had been manufactured
according to the design and specifications upon which the approval was obtained. Consequently,
it could not determine whether its engines had, in fact, been approved . . . .” 23 FMSHRC at

511. American does not dispute this finding in its brief.
     5
     As an Isuzu official acknowledged, engines with the same model number are not
     necessarily identical, because over time changes can be made in the manufacture of a certain
     model engine, including changes in the parts used, the settings, or the engine configuration.
     Biron Decl. at 3. Thus, the fact that American could ascertain from MSHA records that MSHA
     had approved Isuzu engines with the same model number as engines owned by American could
     not serve as a basis for American to determine that its particular engines had been approved.

                                     24 FMSHRC 548
     

Page 8

the label is legible, permanent and contains the information described in section 7.90. Under this
view, the phrase does not denote an engine’s conformity with MSHA’s safety standards and the
approval marker itself would be no more significant than a decorative sticker.

   For the foregoing reasons, I vote to affirm the judge’s decision.6




                                         Mary Lu Jordan, Commissioner




   6
      I agree with Commission Beatty’s view, slip op. at 13 & n.6, that Pennsylvania Elec.

Co., 12 FMSHRC 1562 (Aug. 1990), aff’d on other grounds, 969 F.2d 1501 (3d Cir. 1992), is
inapplicable to the disposition of this case, because here a majority of the Commission has voted
to affirm the judge.

                                    24 FMSHRC 549

Page 9

Commissioner Beatty, affirming:

    Where the language of a regulatory provision is clear, the terms of that provision must be

enforced as they are written unless the regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results. See Dyer v. United States, 832
F.2d 1062, 1066 (9th Cir. 1987); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989);
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). If, however, a standard is
ambiguous, courts have deferred to the Secretary’s reasonable interpretation of the regulation.
See Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994); accord Sec’y of
Labor v. Western Fuels-Utah, Inc., 900 F.2d 318, 321 (D.C. Cir. 1990) (“agency’s interpretation
of its own regulation is ‘of controlling weight unless it is plainly erroneous or inconsistent with
the regulation’” (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)) (other
citations omitted). The Secretary’s interpretation of a regulation is reasonable where it is
“logically consistent with the language of the regulation and . . . serves a permissible regulatory
function.” See Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citations omitted).
The Commission’s review, like the courts’, involves an examination of whether the Secretary’s
interpretation is reasonable. See Energy West, 40 F.3d at 463 (citing Sec’y of Labor on behalf of
Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432, 1435, 1439 (D.C. Cir. 1989)); see also
Consolidation Coal Co., 14 FMSHRC 956, 969 (June 1992) (examining whether Secretary’s
interpretation was reasonable).

    Section 7.90 provides that “Each approved diesel engine shall be identified by a legible

and permanent approval marking.”1 As American notes, the clear wording of section 7.90
contains no requirement that the tag be issued by the manufacturer. A. Br. at 3. American is
correct that, on its face, the regulation is silent as to the source of the approval tag. However,
neither does the regulation clearly provide that the approval tag can be fabricated by the engine’s
owner or any other entity. Therefore, the regulation’s language is not plain but rather ambiguous
on this issue.2 I turn next to the question of whether the Secretary’s interpretation is reasonable.

   1
      The judge in the instant proceeding concluded that the language of the regulation was

ambiguous (23 FMSHRC 505, 509-11 (May 2001) (ALJ)), while the judge in Freeman United
Coal Mining Company concluded that the language was clear. 22 FMSHRC 1345, 1347 (Nov.
2000) (ALJ). Given these inapposite readings of section 7.90, it is reasonable to conclude that
the regulation is ambiguous. See Daanen & Janssen, Inc., 20 FMSHRC 189, 192-193 & n. 7
(Mar. 1998) (“Ambiguity exists when a statute is capable of being understood by reasonably
well-informed persons in two or more different senses.”) (quoting 2A Norman J. Singer,
Sutherland Statutory Construction § 45.02 at 6 (5th ed. 1992)).
2
Chairman Verheggen distinguishes “regulatory silence and regulatory ambiguity.” Slip
op. at 15. However, Commission cases have not drawn such a distinction in regulatory contexts
similar to the one at issue. See Rock of Ages Corp., 20 FMSHRC 106, 117 (Feb. 1998), rev’d in
part on other grounds, 170 F.3d 148, 158-59 (2d Cir. 1999) (regulation is either silent or
ambiguous on the issue of what may trigger a post-blast examination for misfires); Steele Branch

                                     24 FMSHRC 550

Page 10

On this point, it is evident from reading section 7.90 in the context of other related regulatory
requirements and the regulatory preamble relating to 30 C.F.R. § 7.6 that the Secretary’s position
is reasonable. See also Western Fuels-Utah, Inc., 10 FMSHRC 256, 260 (Mar. 1988) (separate
provisions in the Mine Act must be read together).

    Subpart A of Part 7, which specifies the general procedure for testing and approving

products used in underground mining, provides that only the manufacturer can submit an
application for MSHA’s approval. Thus, 30 C.F.R. § 7.2 defines “applicant” as “[a]n individual
or organization that manufactures or controls the assembly of a product and applies to MSHA for
approval of that product.” The same section defines “approval” as “[a] document issued by
MSHA . . . which authorizes an approval marking identifying the product as approved.” Further,
only applicants receive the equipment approval from MSHA. See 30 C.F.R. § 7.5(a) (“An
applicant shall not advertise . . . a product as approved until MSHA has issued the applicant an
approval.”). Subpart A Part 7 regulations further specify post-approval procedures, including
record keeping, quality assurance in the manufacturing process, and audits (30 C.F.R. §§ 7.6, 7.7,
and 7.8, respectively) that are the responsibility of the applicant or approval holder. In short,
these regulations present an integrated approach to the equipment approval process that impose
burdens and continuing responsibilities on the manufacturer.

   The rules in Subpart A of Part 7, which apply to underground mines generally, were

issued prior to the 1996 issuance of the rules governing MSHA approval of diesel engines for use
in underground coal mines. Significantly, 30 C.F.R. § 7.6(a) (1996), provides: “Each approved
product shall have an approval marking.” The preamble to the publication of the final rule
explained the procedures for tagging approved products then in force:

                   Once MSHA has approved a product, the manufacturer is
           authorized to place an approval marking on the product that
           identifies it as approved for use in underground mines. Use of the
           MSHA marking obligates the manufacturer to maintain the quality
           of the product. The MSHA marking indicates to the mining
           community that the product has been manufactured according to
           the drawings and specifications upon which the approval was
           based.

Mining, 15 FMSHRC 597, 601-02 (Apr. 1993) (operator must file an accident report with MSHA
within a reasonable time when the regulation is silent as to the period of time required for
compliance). See also Akzo Nobel Salt, Inc., 21 FMSHRC 846, 865 (Aug. 1999) (Comm.
Verheggen, dissenting) (regulation is silent as to the issue presented and thus “inherently
ambiguous”), rev’d, 212 F.3d 1301, 1303 (D.C. Cir. 2000). Drummond Co., 14 FMSHRC 661,
684-85 (May 1992), cited by my colleague (slip op. at 15), is readily distinguishable from the
instant proceeding in that Drummond involved the imposition of penalties for Mine Act
violations greater than those permitted in the Secretary’s regulations through use of an
administratively issued “Program Policy Letter.”

                                    24 FMSHRC 551

Page 11

53 Fed. Reg. 23486 (June 22, 1988) (emphasis added). See, e.g., 30 C.F.R. §§ 19.12, 20.13, and
23.12. The issuance of the new Part 7 did not result in any material change to the approval
marking process but established a single provision, section 7.6, that had general application to
products that had to be approved for use in underground mines.3 53 Fed. Reg. at 23486-87.
Thus, the preamble to the final rule regarding approval marking identifies the manufacturer as the
entity responsible for attaching the approval tag to the equipment, because only the manufacturer
can ensure that a particular engine is manufactured in accordance with the model design
specifications submitted to MSHA for approval. The provisions of Subpart A are applicable to
the approval and testing of diesel engines for use in underground coal mines. See 30 C.F.R.
§ 7.81.

    In addition to the general provisions of Part 7, Subpart E of Part 7 specifically addresses

the technical requirements, approval, and testing of diesel engines used in underground coal
mines. As part of the application process set forth in Subpart E, the manufacturer must submit a
large amount of technical information, including drawings and design specifications. See 30
C.F.R. § 7.83. Regulations specifying the technical requirements and testing for diesel engines
are detailed and complex. See 30 C.F.R. §§ 7.84-7.89. This information is the basis for MSHA
approval of the equipment for use in underground mining. 61 Fed. Reg. 55412, 55419 (Oct. 25,
1996). Further, the Secretary noted in the preamble to the final rules regarding approval of diesel
equipment in underground coal mines: “Approved diesel engines must be manufactured in
accordance with the specifications contained in the approval . . . .” Id. Finally, section 7.90(a)-
(f) specifies information to be included on the approval marking that the manufacturer is in the
best position to provide.

    It is apparent from reading Subparts A and E of Part 7 and their preambles that the

drafters of the regulations clearly intended that the manufacturer of approved equipment be the
source of the approval tag. The manufacturer is the source of the information that is the basis for
the approval. The manufacturer is also responsible for making the equipment in conformity with
the design specifications that are the basis for MSHA approval. Finally, there are post-approval
responsibilities including quality control, spot testing, and maintaining records of sales of
approved equipment, that only the equipment manufacturer can perform. Under the regulations
at issue, every essential aspect of ensuring that diesel equipment complies with Part 7 regulations
is borne by the manufacturer. Thus, the placement of a tag on approved equipment is the final
step in the approval process that, from a standpoint of logic as well as from a concern of miner
safety, must be borne by the manufacturer. Therefore, under settled principles of regulatory
construction, deference should be given to the Secretary’s reasonable interpretation that the
approval marking must be provided by the manufacturer of approved equipment.4 See, e.g., Rock

   3
      In addition, the new Part 7 allowed product testing by manufacturers, or third party

laboratories, instead of MSHA. 53 Fed. Reg. at 23487.
4
Chairman Verheggen’s plain meaning approach in applying the regulation leads to an
absurd result and cannot stand under established principles of statutory and regulatory

                                    24 FMSHRC 552

Page 12

of Ages Corp., 20 FMSHRC 106, 117 (Feb. 1998) (Commission deferred to Secretary’s
reasonable interpretation where the pertinent regulation was either “silent or ambiguous”), aff’d
in pertinent part, 170 F.3d 148 (2d Cir. 1999); see also Morton Int’l, Inc., 18 FMSHRC 533,
537-38 (Apr. 1996) (Secretary’s interpretation of regulation not upheld where inconsistent with
regulatory history and not in harmony with other regulations).5

    Notwithstanding the foregoing, American argues that, under its reading of section 7.90,

any equipment user can place a tag on approved diesel equipment. American and my dissenting
colleague would carve out this function among all others assigned to manufacturers in Part 7.
However, this reading would lead to an illogical result, would be inconsistent with other
applicable rules in Part 7, and would defeat the policies behind the promulgation of the Part 7
regulations. Indeed, under this reading of section 7.90, the protections of miner health and safety
would largely be eviscerated. This is so because, as the judge noted, “[t]he operator cannot
determine that a particular engine is covered by an MSHA approval because it has no way of
determining whether the engine was manufactured according to the design drawings and
specifications upon which the MSHA approval was based.” 23 FMSHRC at 511. Only the
manufacturer is privy to the information that is the basis for MSHA approval. Without access to
the information that is the basis for the approval, an operator would be guessing as to whether his
equipment is within the class of equipment approved. Such a reading of section 7.90 would
thwart the purpose of providing for equipment approvals and undermine the safety objectives of
the Mine Act and should be avoided. See Dolese Bros. Co., 16 FMSHRC 689, 693 (Apr. 1994).

construction. See, e.g., Rock of Ages Corp., 20 FMSHRC at 111. Here, the mine operator placed
an approval marking on the equipment, notwithstanding that it did not know with certainty
whether the engines at issue had been approved. 23 FMSHRC at 508. Nevertheless, my
colleague believes that as long all of the required lines are filled in on the approval marker, there
is no violation, regardless of whether the person entering the information had access to the
records necessary to supply accurate information. Slip op. at 16. Under the approach suggested
by the dissent, MSHA inspectors would thus have no confidence in the information contained on
the approval markers, and would have to conduct an independent search of records to verify that
the operator’s equipment was in fact approved. The absurdity of such a scheme speaks for itself.
5
Phelps Dodge Corp. v. FMSHRC, 681 F.2d 1189 (9th Cir. 1982), cited by the dissent
(slip op. at 15) in support of his position, addressed the application of an electrical equipment
regulation to hazards resulting from mechanical motion. Id. at 1190-92. The court concluded
that the primary intent of the regulation was to protect miners from electrical shock, rather than
machinery motion. Id. at 1192-93. Contrary to the decision in Phelps Dodge, it is readily
apparent from the regulatory history and context in the instant case that the Secretary intended
equipment manufacturers to supply approval tags. In this regard, I find the court’s decision in
Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358 (D.C. Cir. 1997), more instructive
to the issue of regulatory silence. The court noted, “‘specific regulations cannot begin to cover
all of the infinite variety of . . . conditions which employees must face’ . . . .” Id. at 362
(citations omitted).

                                     24 FMSHRC 553

Page 13

    Further, allowing any entity other than the manufacturer to tag engines as approved

compromises the integrity of the approval process. As noted above, only the manufacturer can
attach an approval marking on an engine because it can do so with the certainty that the engine
conforms to the specifications submitted to MSHA. The manufacturer’s approval marking is an
integral part of the approval process. MSHA must be able to depend on the accuracy and
authenticity of the approval tag. S. Resp. to Mot for Sum. Dec., Att. 5 at 2-3 (Decl. of Terry
Bentley, Deputy Chief, Coal Mine Safety and Health). The tag includes such critical information
as the ventilation rate that must be maintained in the mine to dissipate engine emissions. 30
C.F.R. § 7.90(a). Once the integrity of the approval tag comes into question, an MSHA inspector
cannot accurately determine that the engine meets the requirements of Part 7, and the purpose of
approval tags is largely defeated.

    Finally, American objects to the Secretary’s interpretation of the regulation because Isuzu

provided tags that were flimsy or demanded excessive consideration for them. MSHA too was
concerned about the poor quality of the approval markings, and that was addressed in the PIL,
which specified how mine operators could preserve the original tags pending receipt of new ones.
With regard to the cost of the approval tag, it is worth noting that the responsibilities related to
obtaining MSHA approval of diesel equipment are extensive (see Biron Decl. at 1-2), and Isuzu
undoubtedly incurred costs during the approval process that it passed on to its customers. The
record contains no evidence on the extent of those costs. American, on the other hand, which
had not borne any of the responsibilities or costs of the approval process, sought to enjoy the
benefits of owning MSHA-approved equipment at no cost by fabricating its own approval tags.
In short, there is no record support for American’s excessive cost argument.

    While there is much that appeals to me in Commissioner Jordan’s analysis, I simply

cannot agree that the term “approval marking” as used in the regulations at issue plainly means a
marking that only the manufacturer can provide, especially given the ALJ’s finding of a different
plain meaning in Freeman United. As for the dissent’s commentary invoking Pennsylvania Elec.
Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff’d on other grounds, 969 F.2d 1501 (3rd Cir.
1992) (“Penelec”), in this situation, the Chairman clearly misstates applicable Commission law.
See slip op. at 17 & n.1. Penelec only applies when Commissioners are equally split on whether
to reverse or affirm the decision of the ALJ at issue. In such an instance, the ALJ’s decision
stands as if affirmed. Penelec, 12 FMSHRC at 1563-65. By any count, in this case two
Commissioners have voted to affirm the judge, while only one has voted to reverse. Penelec is
thus entirely immaterial to the disposition of this case.6

   6
      The dissent has clearly confused the split in rationales among the majority to affirm the

judge with a split in votes on the result of the case. These are two entirely separate issues, with
plainly different ramifications. The Secretary does not enforce Commissioner rationales against
operators; she enforces her regulations, and her reading of the one at issue here has been upheld
by a majority of the Commission. Until such time as it is vacated by a court, that reading stands,
the dissent’s view of the force of the separate opinions notwithstanding.

                                    24 FMSHRC 554

Page 14

   For the foregoing reasons, I vote to affirm the judge’s decision that American violated

sections 75.1990(a)(1) and 7.90 when it fabricated the approval tags for its diesel engines.

                                         Robert H. Beatty, Jr., Commissioner




                                    24 FMSHRC 555

Page 15

Chairman Verheggen, dissenting:

    In this matter, the regulation at issue, 30 C.F.R. § 7.90, does not on its face require the

use of approval markings for diesel engine supplied by the engine manufacturer. The judge
opined that the “regulation’s silence creates ambiguity as to permissible sources for the approval
marking” at issue. 23 FMSHRC 505, 511 (May 2001) (ALJ). He then proceeded to defer to the
Secretary’s “interpretation” of the purported ambiguity. Id. at 511-12. The judge made an
analytical leap here, but fell far short of bridging the chasm between the regulatory silence and
the Secretary’s attempt to fill that silence. I disagree with his decision as a matter of law, and
thus dissent from my colleagues’ separate opinions affirming the judge’s decision in result.

    The judge’s analytical error is in equating silence with ambiguity. This conclusion is

directly at odds with a well-established holding of the Ninth Circuit in which that court stated:
“‘If a violation of a regulation subjects private parties to . . . civil sanctions, a regulation cannot
be construed to mean what an agency intended but did not adequately express.’” Phelps Dodge
Corp. v. FMSHRC, 681 F.2d 1189, 1193 (9th Cir. 1982) (citations omitted). Indeed, section 7.90
simply requires that “[e]ach approved diesel engine shall be identified by a legible and permanent
approval marking inscribed with the assigned MSHA approval number and securely attached to
the diesel engine.” 30 C.F.R. § 7.90 (in relevant part). The regulation does not include the
phrase “approval marking provided by the manufacturer.”

    The distinction the judge misses in his decision is between regulatory ambiguity and

regulatory silence. Clearly, the Secretary would be well within her authority to require that under
the “legibility” provision of section 7.90, for example, approval markings be in English and in
type of a certain size. Insofar as any of the explicit terms of the regulation would be susceptible
to more than one relevant meaning, the regulation would be ambiguous and we would then turn
to an analysis of whether the Secretary’s interpretation of the ambiguity is reasonable. But here,
the meaning of an explicit term is not at issue. Instead, the Secretary is attempting to graft onto
section 7.90 a new substantive requirement that imposes new obligations that significantly affect
private interests. See Drummond Co., 14 FMSHRC 661, 684-85 (May 1992) (setting forth
discussion between substantive rules, which require notice-and-comment rulemaking, and
procedural rules, which do not).

     The situation here is similar to a regulatory silence we faced in Contractor’s Sand and

Gravel, Inc. v. FMSHRC, where the Secretary attempted “grafting onto the plain language of a
regulation a [requirement] neither stated nor implied in that regulation.” 199 F.3d 1335, 1342
(D.C. Cir. 2000). At issue in Contractor’s was whether the Secretary’s attempt at enforcing her
grafted rule was substantially justified under the Equal Access to Justice Act, 5 U.S.C.
§ 504(a)(1). Writing for the court, Judge Sentelle left no doubt that the Secretary’s approach was
ill-advised: “It is not substantially justifiable for an agency to persistently prosecute citizens for
violating a regulation that does not exist.” 199 F.3d at 1341. Instead, Judge Sentelle suggested
that “it [was] time for the Secretary to repair to rulemaking, not to bring one more unsupportable
citation.” Id. at 1342.

                                      24 FMSHRC 556

Page 16

   As I stated in Freeman United:

                  The Secretary’s requirement that the manufacturer must
          supply [the] markings [at issue here] is “a regulation that does not
          exist.” [Contractors, 199 F.3d at 1342.] And even if the Secretary
          wanted it to exist, if she believes such a requirement is needed, she
          must initiate appropriate rulemaking to achieve this goal.

Freeman United Coal Mining Co., 24 FMSHRC ___, slip op at 15, No. LAKE 2000-102-R (June
24, 2002).

    As I point out in my opinion in Freeman, my colleagues find serious fault with my

approach. Commissioner Jordan claims that I would “render the term ‘approval marker’
meaningless” because I would require “the Secretary to accept any label, affixed to an engine by
any person, so long as the label is legible, permanent and contains the information described in
Section 7.90.” Slip op. at 7-8. My colleague’s conclusion that the regulation would thus be
meaningless simply does not follow from her argument. Any such label, regardless of its source,
would have to comply with the clear requirements of section 7.90, i.e., that the approval marking
be legible and permanent and contain the information set forth in the regulation. That
Commissioner Jordan would view even a marking that meets these requirements as a “decorative
sticker” (slip op. at 8) simply because of who made the sticker reveals an astonishing exaltation
of form over substance. So long as an approval marking meets the requirements of section 7.90,
it matters not from whence the marking comes under the clear terms of the regulation.

    Commissioner Beatty finds that under my reading of the regulation, “the protections of

miner health and safety would largely be eviscerated” because mine operators would not be able
to “‘determine that a particular engine is covered by an MSHA approval.’” Slip op. at 12
(quoting 23 FMSHRC at 511). I have two problems with my colleague’s argument. First, to
paraphrase the court in Contractors, mere invocation of the “expansive theory [of] the
commendable goal of promulgating safety” is not sufficient to permit the Secretary “to prosecute
activity which violates no existing rule.” 199 F.3d at 1342. Instead, it is incumbent upon the
Secretary to protect the health and safety of miners by instituting a rulemaking to clarify her
regulation, not “bring one more unsupportable citation.” Id.

     Secondly, my colleague is apparently concerned that some operators could produce

approval markings that are incorrect. That would indeed be a problem, and would certainly give
rise to violations of section 7.90. But that is not the case here. As the Secretary’s charges
against American state, the company had on the cited equipment “‘legible and permanent
approval marking[s] as required by [section] 7.90.’” 23 FMSHRC at 507. The sole basis for the
citations at issue was that the approval markings “had not been supplied by the engine
manufacturer.” Id. Otherwise, the markings fully complied with section 7.90. This is not a case
involving approval markings that failed to meet any explicit requirement of section 7.90. I thus
find my colleague’s concerns misplaced.

                                    24 FMSHRC 557

Page 17

     Finally, I note that although my colleagues affirm the judge here, their reasons for doing

so are diametrically at odds. Commissioner Beatty finds section 7.90 ambiguous and affirms the
judge’s decision to defer to the Secretary’s interpretation of the regulation. Commissioner
Jordan, on the other hand, finds section 7.90 plain and affirms the judge in result. The effect of
this split in rationales is to allow the judge’s decision to stand as if affirmed. Pennsylvania Elec.
Co., 12 FMSHRC 1562, 1563-65 (August 1990), aff'd on other grounds, 969 F.2d 1501 (3d Cir.
1992). However, there is no Commission rationale. The rationales on which my colleagues base
their separate opinions are non-binding and non-authoritative, and are thus dicta.1 In other
words, the result they reach has no basis – neither plain meaning nor deference – that will bind
future Commissioners under the principle of stare decisis. I find this unfortunate in light of the
congressional charge to us to “develop a uniform and comprehensive interpretation of the
law . . . [and to] provide guidance to the Secretary in enforcing the act and to the mining industry
and miners in appreciating their responsibilities under the law.” Hearing on the Nomination of
Members of the Federal Mine Safety and Health Review Comm’n Before the Senate Comm. on
Human Res., 95th Cong. 1 (1978).

   Accordingly, I would reverse the judge and vacate the challenged citations.




                                          Theodore F. Verheggen, Chairman




   1
      My colleagues’ opinions are dicta in that they are “unnecessary to the [result of the]

decision in the case and therefore not precedential.” Black’s Law Dictionary 1100 (7th ed. 1999)
(definition of obiter dictum).

                                     24 FMSHRC 558

Page 18

Distribution

Michael O. McKown, Esq.
The American Coal Company
29325 Chagrin Boulevard, Suite 300
Pepper Pike, OH 44122

Tina Peruzzi, Esq.
Office of the Solicitor
U. S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-3939

Administrative Law Judge Michael E. Zielinski
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

                                 24 FMSHRC 559