Kennecott Minerals Company

Plain-English summary

MSHA cited Kennecott Minerals Company for failing to maintain adequate berms or guardrails along an elevated access road at its Utah Copper Division. The ALJ dismissed the penalty proposals after treating 30 C.F.R. § 55.9-22 as advisory because an earlier version used the word "should." The Commission held that the rule was mandatory because it was consistently labeled "Mandatory" and its regulatory context imposed a mandatory duty. It reversed the ALJ's decision and remanded the cases for assessment of appropriate civil penalties. The Commission did not approve the informal correction of the rule's wording in the Code of Federal Regulations.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 55.9-22, the berm standard, and 30 C.F.R. § 55.1, the Part 55 purpose and scope provision.
• Outcome: The ALJ's dismissal was reversed, and the cases were remanded for civil-penalty assessment.
• Key point: A safety standard labeled "Mandatory" can impose a mandatory duty even when an older promulgated version uses "should" instead of "shall."

Full text (FMSHRC public release)

CCASE:
MSHA V. KENNECOTT MINERALS
DDATE:
19850916
TTEXT:

             FMSHRC-WDC
            September 16, 1985

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. WEST 82-155-M
v. WEST 83-60-M

KENNECOTT MINERALS COMPANY,
UTAH COPPER DIVISION

BEFORE: Backley, Acting Chairman; Lastowka and Nelson,
Commissioners

              DECISION

BY THE COMMISSION:

These civil penalty cases, arising under the Federal Mine

Safety and Health Act of 1977 ("Mine Act"), 30 U.S.C. § 801 et seq.
(1982), require us to interpret 30 C.F.R. § 55.9-22, the berm standard
applicable to metal and nonmetal open pit mines from 1970 through
1984. 1/ A Commission administrative law judge held that the standard
was merely advisory and dismissed the Secretary of Labor's proposal
for penalty. 6 FMSHRC 2023 (1982)(ALJ). We disagree. For the
reasons that follow, we reverse the judge's decision and remand for
assessment of appropriate civil penalties.

These cases arose out of two citations issued to the Kennecott

Minerals Company, Utah Copper Division, ("Kennecott") in 1982 and 1983
by an inspector of the Department of Labor's Mine Safety and Health
Administration ("MSHA"). The citations alleged that Kennecott had
violated 30 C.F.R. § 55.9-22 by failing to maintain adequate berms or
guardrails along an access road to the tailings pond associated with
its Magna and Arthur concentrators. Kennecott did not deny that the
road lacked berms or guardrails; however, it contested the citations
on a

Page 2

1/ In the 1984 edition of 30 C.F.R., the standard stated, "Mandatory.
Berms or guards shall be provided on the outer bank of elevated
roadways." In this edition, 30 C.F.R. Parts 56 and 57 contained
identical standards applicable to sand, gravel, and crushed stone
operations, and metal and nonmetal underground mines. On January 25,
1985, the Secretary of Labor promulgated a recodification combining
Parts 55, 56, and 57 into a single new Part 56. New section 56.9022
also states, "Berms or guards shall be provided on the outer bank of
elevated roadways."

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number of legal grounds. 2/ Following a hearing, the administrative
law judge held that the standard did not impose any mandatory
requirements on mine operators and that the Secretary's civil penalty
proposal therefore could not be sustained.

The judge based his decision on the fact that when the standard

was originally promulgated in 1970, it read "Mandatory. Berms or
guards should be provided on the outer bank of elevated roadways."
34 Fed. Reg. 3660, 3663 (emphasis added). He pointed out that this
language represented a change from the standard as proposed in 1969,
which had included the word "shall" instead of "should," and noted
that the preamble to the final rule stated, "In a few instances in
which the language of a proposed mandatory standard appeared to impose
a requirement not within the intendment of the standard, the standard
has been rephrased." The judge also stated that Jim Walter Resources,
Inc., 3 FMSHRC 2488, 2490 (1981), in which the Commission held that a
standard requiring that an ANSI standard "be used as a guide" was
merely advisory, was "much akin" to this case. He pointed out that
the word "shall" "has almost universally been ... used in regulations
to express what is mandatory," and concluded that the Secretary
proposed the standard in mandatory form and promulgated it in advisory
form. Therefore, he held that the citations must be vacated.

On review, the Secretary argues that the promulgation history

of the standard establishes its mandatory nature. He points out that
although the word "shall" in the proposed standard was changed to
"should" in the final rule, the designation of the standard as
"mandatory" was never changed, and that the preamble to the proposed
rule clearly states that "where the word 'Mandatory' appears in a
standard, the standard is a mandatory one." The Secretary argues that
the preamble language that the judge relied upon does not support his
holding that the use of the word "should" was intended to make
compliance with the berm standard less than mandatory. He notes that
the quoted sentence was followed by examples of instances in which a
proposed mandatory standard appeared to impose an unintended
requirement, and asserts that the changes in those examples, unlike
the change in the berm standard, merely "correct obvious mistakes."

In this case, the Secretary claims, it was the use of the word
"should" in the promulgated standard that was a clerical error. That
error was corrected in the 1974, and subsequent editions of the Code
of Federal Regulations, as well as the "Yellow Book", have all
included the word "shall" in the standard. 3/ The Secretary also
argues that in 1979 all advisory standards for metal and nonmetal
mines were either revoked or made mandatory (44 Fed. Reg. 48,490) and

Page 4

that the judge's

2/ Most of Kennecott's arguments represented an attempt to establish
that the standard was not applicable to the cited location. The
administrative law judge rejected Kennecott's position and Kennecott
has not renewed it in this appeal.

3/ The "Yellow Book" was a compilation of all metal and nonmetal mine
safety and health standards. It was published by the Secretary of the
Interior in 1972, and widely disseminated through the mining
community.

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decision "fails to reconcile the fact that there are no longer any
advisory standards." Finally, the Secretary points out that in
Secretary of Labor v. Cleveland Cliffs Iron Co., 3 FMSHRC 291 (1981)
and Secretary of Labor v. El Paso Rock Quarries, 3 FMSHRC 35 (1981),
the Commission upheld citations issued under the berm standard. He
argues that by imposing civil penalties in those cases, the
Commission found the berm standard to be mandatory.

In support of the judge's decision, Kennecott argues that when

the standard was promulgated originally the change in wording from
"shall" to "should" "was intended to be significant." It cites the
preamble language quoted by the judge, supra, and also claims that the
decision in Jim Walter Resources, supra, is applicable to this case.
Based on dictionary definitions of "should," and "shall," it argues
that, under the standard as promulgated, berms might be "proper" or
"expedient," but nevertheless not required. Kennecott also attacks
the Secretary's position that the use of the word "should" in the
original Federal Register promulgation of the standard was a clerical
error which could be informally corrected in the Code of Federal
Regulations. It argues that there is no authority for such "informal"
corrections by the Federal Register staff and that there is no way of
knowing whether the change from "should" to "shall" accurately
reflected the intent of the Secretary. It points out that since the
combination of the words "Mandatory" and "should" in the berm standard
was unique in the Part 55 regulations, "[i]t is just as reasonable to
conclude that ... inclusion of the term 'mandatory' was erroneous."

Our own examination of the standard's language and history
convinces us that it is now and always has been a mandatory standard.
As the parties point out, the standard was first proposed by the
Secretary of the Interior in 1969. 34 Fed. Reg. 639. It was part of
a major package of standards applicable to metal and nonmetal mines
proposed pursuant to the Federal Metal and Nonmetallic Mine Safety
Act, 30 U.S.C. § 721 et seq. (1976), a predecessor statute to the Mine
Act. As proposed, the standard read:

  55.9-22. Mandatory - OPAC - Berms or guardrails
  shall be provided on the outer bank of elevated
  roadways.

The standards included in the 1969 proposal were later promulgated in
several stages. The first stage, on July 31, 1969, included standards
on which no comments had been received and which were promulgated
without change from the proposal. 34 Fed. Reg. 12503 (1969).
Included in this group was the "Purpose and Scope" section of Part 55:

Page 6

         Each standard which is preceded by the word
 "Mandatory" is a mandatory standard. The violation of
 a mandatory standard will subject an operator to an order
 or notice under section 8 of the Act (30 U.S.C. § 727).

30 C.F.R. § 55.1.

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The second stage promulgation, on February 25, 1970, included
the standard at issue. This promulgation was comprised of standards
on which comments had been received but which (with one exception
noted below) were promulgated without substantive change. All
standards that had been proposed as mandatory were promulgated with
the designation "Mandatory." 35 Fed. Reg. 3660 (1970). As the
parties have noted, the preamble to this promulgation stated:

         For the purpose of clarification, revisions
 have been made in some of the standards which the
 advisory committee recommended be mandatory, but no
 substantive changes have been made except in Standard 55.6-1,
 which relates to explosives and which is discussed below.
 In a few instances in which the language of a proposed
 mandatory standard appeared to impose a requirement not
 within the intendment of the standard, the standard has been
 rephrased. For example, proposed Standard 55.4-1
 appeared literally to prohibit smoking wherever oil or
 grease is used; the revised standard relates the
 prohibition to the hazard involved. Similarly, proposed
 Standards 55.6-59 and 55.6-60, when read separately,
 appeared to require that all persons be removed from
 areas endangered by flyrock from blasting and that shelters
 be provided; Standard 55.6-160 hereby added to Part 55
 combines the alternatives clearly contemplated by the two
 proposed standards. Changes, some substantive, also have
 been made in a number of the advisory standards.

As promulgated, section 55.9-22 read:

 Mandatory. Berms or guards should be provided on the

outer bank of elevated roadways.

35 Fed. Reg. 3660, 3663.

The standard appeared in this form in the 1970-1973 editions

of the Code of Federal Regulations. In the 1974 edition, however,
without explanation, and apparently without notice in the Federal
Register, the standard appeared with the word "should" changed to
"shall." Subsequent editions of the Federal Register have continued
to publish the standard containing the word "shall."

The parties have argued extensively over which version of the
standard is "correct." We do not find it necessary to resolve this
question, however, because we believe that the two versions of the

Page 8

standard impose identical requirements on mine operators. We consider
the most important factor in determining the nature of the standard to
be the fact that it has consistently contained the designation
"Mandatory." In light of this fact, we hold that the standard always
imposed a mandatory requirement on mine operators.

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In this case, it is at least arguable that the combination of
the designation "Mandatory" with the word "should" created an
ambiguity as to how the standard is to be interpreted. In light of
this potential ambiguity we have examined the context and history of
the berm standard to determine its nature. Our determination that the
standard imposed a mandatory duty is based in part on the language of
30 C.F.R. § 55.1, the Purpose and Scope section of Part 55. As noted
above, that section states, "Each standard which is preceded by the
word 'Mandatory' is a mandatory standard." It goes on to state that
violation of those standards designated mandatory will subject a mine
operator to enforcement action by the Secretary. The essential
defining characteristic of a mandatory rule is that "failure to comply
with [its] requirements ... subjects the noncomplier to affirmative
legal liabilities." 1A Sutherland, Statutory Construction § 2503
(3d ed. 1972). In this case the regulatory scheme clearly provides
that failure to comply with a provision labelled "Mandatory" will
subject an operator to the Act's enforcement mechanisms and penalties.

Further, in light of the arguments made by Kennecott, it is
notably inconsistent to argue (1) that the 1970 "should" must prevail
over "shall" even though the former word was changed to "shall" in
1974 and so appeared in the standard when these violations occurred,
and (2) to argue at the same time that the consistent appearance in
the standard of the prefatory word "Mandatory," (which has appeared in
the standard from inception), must be charged to mistake.

As set forth above, the regulatory history of the standard
supports our conclusion that it imposes a mandatory duty on mine
operators. Also, we find it significant that the standard was
proposed as mandatory and that no standards proposed as mandatory
were promulgated as merely advisory in the relevant rulemaking. On
other occasions, the Secretary has amended advisory standards and
made them mandatory, but this has been done through full rulemaking
procedures. See 35 Fed. Reg. 10299 (1970)(proposal), 35 Fed. Reg.
18587 (promulgation) and 43 Fed. Reg. 40766 (1978)(proposal), 44 Fed.
Reg. 48490 (1979)(promulgation). We have not been cited to any
instance in which the Secretary proposed a standard as mandatory and
promulgated it as advisory.

In reaching this conclusion, we emphasize that we are not
approving the "informal correction" process through which the
language of the standard apparently was changed in the Code of Federal
Regulations. The rulemaking process, as established by the Federal
Register Act, 44 U.S.C. § 1501 et seq., and the Administrative
Procedure Act, 5 U.S.C. § 500 et seq., as well as by the Mine Act and

Page 10

its predecessor statutes, contemplates that notice be given in the
Federal Register of all changes in agency rules. Neither the Secretary
nor the Office of the Federal Register itself is free to disregard
this requirement. Indeed, the Secretary on other occasions has
corrected clerical errors in standards by publishing notice of the
corrections in the Federal Register. See e.g., 34 Fed. Reg. 6737
(1969), 34 Fed. Reg. 3947 (1969), and 35 Fed. Reg. 4315 (1970).
Rather, our holding in this case is based on the fact that we find
that the language of the originally promulgated standard imposed a
mandatory requirement consistent with the later-published "corrected"
version.

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This case is therefore remanded to the administrative law judge
for assessment of appropriate penalties. 4/

               Richard V. Backley, Acting Chairman


               James A. Lastowka, Commissioner


               L. Clair Nelson, Commissioner

4/ Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c),
we have designated ourselves as a panel of three members to exercise
the powers of the Commission.

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Distribution

Vicki J. Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

Kent W. Winterholler, Esq.
Parsons, Behle & Latimer
P.O. Box 11898
Salt Lake City, Utah 84147

Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
333 West Colfax Ave., Suite 400
Denver, Colorado 80204