Sanger Rock & Sand

Plain-English summary

MSHA charged Sanger Rock & Sand with violating two mine-safety regulations at the Sanger Pit and Mill in California. Sanger argued that the federal government lacked jurisdiction because it did not own the property and because California had not ceded it, and also argued that MSHA had not properly published its organization and authority under the Administrative Procedure Act. Judge John J. Morris rejected the territorial-jurisdiction argument but found that MSHA had not complied with the publication requirement and that Sanger claimed prejudice from that omission. He vacated both citations and their penalties and dismissed the two proceedings. The Commission later reviewed the ruling.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.14007; 30 C.F.R. § 56.12028
• Outcome: Citation No. 3076869 and Citation No. 3074994, with all penalties, were vacated and both proceedings were dismissed.
• Key point: The ALJ found that MSHA's failure to publish required organizational information under the Administrative Procedure Act warranted dismissal on this record.
• Subsequent review: The Commission later directed review in west-88-275-m-commission.

Full text (FMSHRC public release)

1044
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 88-275-M
PETITIONER A.C. No. 04-01937-05505

         v.                             Docket No. WEST 89-71-M
                                        A.C. No. 04-01937-05506

SANGER ROCK & SAND,
RESPONDENT Sanger Pit and Mill

                             DECISION

Appearances: Susanne Lewald, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California,
For Petitioner;
J.F. Baun, President, Sanger Rock and Sand,
Sanger, California, pro se

Before: Judge Morris

 The Secretary of Labor, on behalf of the Mine Safety and

Health Administration (MSHA), charges respondent Sanger Rock &
Sand (Sanger) with violating two safety regulations1
promulgated under the Federal Mine Safety and Health Act, 30
U.S.C. 801 et seq. (the Act).

 After notice to the parties, a hearing on the merits was

held in Fresno, California on December 13, 1989.

    The parties filed post trial briefs.

                         Threshold Issues

 In support of its motion to dismiss, Sanger raises two

issues.

 Initially, the operator asserts MSHA did not acquire

jurisdiction over it for the reason that the federal government has
failed to comply with Article I, Section 8, Clause 172 of the
United States Constitution. Specifically, it is argued that,
since the United States does not possess fee simple title to
Sanger's property and since the state of California did not cede
the property to the United States, then the case should be
dismissed for lack of "territorial jurisdiction."

                        Discussion

 For the purpose of this ruling, I assume the federal

government does not own this property and I further assume the
property has not been ceded to the federal government by the
state of California. But I nevertheless conclude that Sanger's
arguments are misdirected. The cited portion of the Constitution
relied on is a grant of authority relating to the District of
Columbia, the seat of government of the United States. The
Constitutional clause relied on by Sanger does not require that
the federal government own property as a pre-condition to
regulating such property.

 In support of its position, Sanger relies upon United States

v. Benson, 495 F.2d 475 (1974).

 Benson is not controlling. In Benson the defendants therein

were convicted of a robbery that was committed within the
territorial jurisdiction of the United States. The territorial
jurisdiction of the United States involved in the case was Fort
Rucker, Alabama, a military installation. In view of this fact
the federal military code, by virtue of Clause 17, was the
exclusive law on the military installation.

 Since Article I, Section 8, Clause 17 is neither a grant of

authority to regulate mines nor a restriction on the federal
authority, it is necessary to look elsewhere in the Constitution
for such authority.

 The grant of authority to regulate mines rests in the

"Commerce Clause"3 contained in Article I, Section 8, Clause
3 of the Constitution.

 It is apparent, with such a grant of authority, that

Congress enacted the Mine Act and defined commerce as it relates
to mining. Specifically, in Section 4 of the Act, Congress
stated:

         Each coal or other mine, the products of which enter
         commerce, or the operations or products of which affect
         commerce, and each operator of such mine and every
         miner in such mine shall be subject to the provisions
         of this chapter.

    Further, "Commerce" is defined in the 1969 Act as follows:

         [C]ommerce means trade, traffic, commerce,
         transportation or communication among the several
         states, or between a place in a state and any place
         outside thereof, or within the District of Columbia, or
         a possession of the United States, or between points
         within the same state but through a point outside
         thereof.

 The use of the phrase "which affect commerce" in the Act,

indicates the intent of Congress to exercise the full reach of
its constitutional authority under the commerce clause. See:
Brennan v. OSHA, 492 F.2d 1027 (2d Cir. 1974); United States v.
Dye Construction Co., 510 F.2d 78 (10th Cir. 1975); Polish
National Alliance v. NLRB, 332 U.S. 643 (1977).

 In Perez v. United States, 402 U.S. 146 (1971), it was held that

Congress may make a finding as to what activity affects
interstate commerce, and by doing so it obviates the necessity
for demonstrating jurisdiction under the commerce clause in
individual cases.

 In short, mining is among those classes of activities which

are regulated under the Commerce Clause and thus is among those
classes which are subject to the broadest reaches of federal
regulation because the activities affect interstate commerce.
Marshall v. Kraynak, 457 F. Supp. 907 (W.D. Pa. 1978), aff'd, 604
F.2d 231 (3d Cir. 1979), cert. denied, 444 U.S. 1014 (1980).
Further, the legislative history of the Act as well as court
decisions, encourage a liberal reading of the definition of a
mine found in the Act in order to achieve the Act's purpose of
protecting the safety of miners. Westmoreland Coal Company v.
Federal Mine Safety and Health Review Commission, 606 F.2d 417
(4th Cir. 1979). See also: Godwin v. Occupational Safety and
Health Review Commission, 540 F.2d 1013 (9th Cir. 1976), where
the court held that unsafe working conditions of one operation,
even if in initial and preparatory stages, influences all other
operations similarly situated, and consequently affect interstate
commerce.

 The courts have consistently held that mining activities

which may be conducted affect commerce sufficiently to subject
the mines to federal control. See: Marshall v. Kilgore, 478 F.
Supp. 4 (E.D. Tenn. 1979); Secretary of the Interior v. Shingara,
418 F. Supp. 693 (M.D. Pa. 1978); Marshall v. Bosack, 463 F.
Supp. 800, 801 (E.D. Pa. 1978). Likewise, Commission judges have
held that intrastate mining activities are covered by the Act
because they affect interstate commerce. See: Secretary of Labor
v. Rockite Gravel Company, 2 FMSHRC 3543 (December 1980);
Secretary of Labor v. Klippstein and Pickett, 5 FMSHRC 1424
(August 1983); Secretary of Labor v. Haviland Brothers Coal
Company, 3 FMSHRC 1574 (June 1981); Secretary of Labor v. Mellott
Trucking Company, 10 FMSHRC 409 (March 1988).

 In a prior decision involving the Secretary and Sanger,

Commission Judge August F. Cetti ruled against Sanger's
"territorial jurisdictional" argument. Sanger Rock & Sand, 11
FMSHRC 403 (March 1989).

 Sanger also argues that the state of California has its own

laws and regulations that protect the safety and health of its
citizens. Therefore, the federal government lacks jurisdiction in
California.

 This argument has been raised in a number of cases. Commission

judges have consistently held that state and federal OSHA
statutes do not preempt the 1977 Mine Act. See: Brubaker-Mann,
Inc., 2 FMSHRC 227 (January 1980); Valley Rock and Sand
Corporation, 4 FMSHRC 113 (January 1982); Black River Sand and
Gravel, Inc., 4 FMSHRC 743 (April 1982); San Juan Cement Company,
Inc., 2 FMSHRC 2602 (September 1980); Sierra Aggregate Co., 9
FMSHRC 426 (March 1987). I agree with these holdings, and I also
note that section 506 of the 1977 Mine Act permits concurrent
state and federal regulation. Under the federal supremacy
doctrine, a state statute is void to the extent that it conflicts
with a valid federal statute. Dixie Lee Ray v. Atlantic Richfield
Company, 435 U.S. 151, 55 L. Ed. 2d 179 (1978); Bradley v. Belva
Coal Company, 4 FMSHRC 982, 986 (June 1982).

 For the foregoing reasons, Sanger's "territorial

jurisdictional" argument in support of its motion to dismiss is
denied.

 Sanger also asserts that the Secretary's citations should be

vacated because she has not complied with 5 U.S.C. 552,4 a
portion of the Administrative Procedure Act.

 In particular, Sanger states the inspector only presented his

I.D. card at the time of the inspection. However, the I.D. card
did not show his title, authority, or other relevant matters.

 In dealing with its citizens, Sanger believes the

government, through the federal register, must at least show the
inspector's duties, delegated authority, as well as MSHA's
central and field organizations.

 In its post trial brief Sanger asserts that MSHA's failure

to publish in the Federal Register has adversely affected it as a
member of the public. Some, but not necessarily all, of the
adverse effects are as follows:

           (A) Representatives of the Secretary over-stepping
    their authority with no way for the public to know what
    that authority is.

           (B) Not knowing the "chain of command" in any
    government agency renders the public at an extreme
    disadvantage when dealing with that agency.

           (C) How, where, and to whom are complaints registered
    in regard to misconduct by a representative of the
    Secretary if the organization plans are not published?

           (D) Due process is most important to the public
    including mine operators, and without the knowledge of
    how that can be obtained in MSHA's scheme of operations
    leaves them vulnerable to the whims of various
    individuals.

           (E) Assessments arising from unauthorized actions of
    agency "employees".

            (F) Sanger has been subjected to possible adverse
    effects due to an investigation by Mr. Alvarez (MSHA
    inspector) during which he demanded and received
    company records to which he may not have had the
    authority to see. This investigation took place on
    March 3, 1989. A citation was issued and the
    disposition is still pending with adverse effects
    likely.

 Sanger also attaches to its brief a federal register

publication 5/ of Friday, March 31, 1978, dealing with a
delegation of authority and assignment of responsibility for mine
safety and health programs. However, Sanger asserts such
publications do not satisfy the A.P.A.

 The Secretary's contrary positions will be hereafter

considered.

                      Discussion

 Publication: Section 552(a)(1) of the A.P.A. requires each

agency to separately state and publish in the Federal Register
"descriptions of its central and field organization and the
methods whereby the public may obtain information, make
submittals or requests or obtain decisions."

 An agency of the federal government is defined by 44 U.S.C.

1501.6 The Mine Safety and Health Administration (MSHA) is
such an agency. However, MSHA has not complied with this above
cited A.P.A.

 The Secretary's post trial brief does not refer to any

relevant publication nor has the judge located any such
publication in the Register nor in its codification showing
MSHA's "central and field organizations."7 The statutory
directive is explicit as to what must be published.

 Rather, the Secretary argues Sanger's defense is irrelevant

because the rights afforded MSHA employees to make inspections,
etc., do not constitute a delegation of any authority vested in
the Assistant Secretary of Labor [for MSHA]. Particularly, the
Mine Act empowers authorized employees of MSHA to engage in the
activities enumerated in Section 103(a) of the Act.

 I reject the Secretary's position. It is well established

that statutes should be construed together. In short, the
authority in the Mine Act does not override MSHA's obligation to
comply with the A.P.A.

 Secondly, the Secretary argues that the Office of the

Solicitor (of Labor) is not a federal agency. Accordingly, the
Solicitor does not promulgate rules and regulations which have
general applicability and legal effect.

 The judge believes this argument involves a

mis-communication. A fair reading of Sanger's argument at the
hearing as well as its post trial brief indicates a focus
directed to MSHA, not to the Solicitor.

 The Secretary also argues that Sanger has not been adversely

affected by the lack of any publication.

 The statute does not require that an individual be adversely

affected by a failure to publish. The Secretary's case in support
of that position is misplaced. In U.S. v. Fitch Oil Company, 676
F.2d 673 (1982) (Temp. Em. C.A.) appellant relied on the fact
that the Department of Energy's (DOE) "audit policy" was revoked.
The appellate court held that such revocation did not vest any
constitutional or statutory right in respondent oil company or
its officers that would invalidate subpoenas for books, etc.,
previously issued. The Court ruled that the "audit policy" was
not a legislative rule by designation or substance. It was
intended to govern internal agency procedures and was therefore
not binding on the DOE. In the instant case, except for the
publication of the regulations, 30 C.F.R. 56.14007 and 30
C.F.R. 56.12028, no publication was made. In particular, there
was no publication of MSHA's "central and field organization . . .
for the guidance of the public."

 For a precise articulation of the applicable law I find

Rowell v. Andrus, 631 F.2d 699 (1980), (10th Cir.) and United
States v. Two Hundred Thousand Dollars ($200,000) in United States
Currency, 590 F. Supp. 866 (1984) to be persuasive. See also,
Pinkus v. Reilly, 157 F. Supp. 548, D.C.,N.J. (1957).

  In Rowell the Secretary of the Interior published in the Federal

Register a regulation in final form. The difficulty was the
publication was entered less than 30 days before its effective
date.

 On appeal the 10th Circuit Court of Appeals invalidated the

published rule and action thereunder because it was published
less than 30 days before its effective date as required by
Section 553(d) of the A.P.A., 631 F.2d at 702.

 In United States v. Two Hundred Thousand Dollars ($200,000)

in United States Currency, the United States Customs Department
seized $200,000 at an airport. The Court invalidated the
forfeiture because Customs failed to satisfy 5 U.S.C. 552
(a)(1)(c).

 In short, Customs' form should have been published in the

Federal Register, 590 F.Supp. at 870, 871.

 The Secretary also argues that to prevail Sanger must show

actual prejudice which bears upon the violations for which the
company was cited.

 In the situation presented here the record does not reflect

that Sanger knew MSHA's central and field organizations. If
Sanger knew of the matters that should have been published, then
it could hardly have asserted this defense. However, in this case
Sanger claims to have been prejudiced. In Citation No. 3074994,
Sanger was cited for violating 30 C.F.R. 56.12028.8 One of
Sanger's objections was that the company had no way of knowing
nor any way to check whether it was obliged to turn over ground
system testing reports to the MSHA inspector.

 The final argument presented by the Secretary is that the

selection of Mr. Alvarez as an authorized employee of the Mine
Safety and Health Administration is a matter expressly exempted
from the requirements of the A.P.A.

 I agree. Internal personnel rules and practices are exempt.

In 5 U.S.C. 552 (b)(2) an exception appears where the material
sought "(2) related solely to the internal personnel rules and
practices of an agency."

 However, the main thrust of Sanger's case seeks information

showing the inspector's duties, delegated authority as well as
MSHA's central and field organizations. Such matters are clearly
within the statutory mandate.

 The Secretary's position is no doubt somewhat difficult. She

is charged with enforcing the Mine Safety Act. On the other hand
she is obligated to comply with the direct statutory mandate
discussed herein. It is the writer's view that if the Secretary
now publishes in the Federal Register such publication, if
otherwise correct, could be effective 30 days thereafter. Rowell
v. Andrus, supra, 631 F.2d at 705. However, such publication will
not affect this operator and, for the reasons stated herein,
these cases should be dismissed.

 Sanger seeks an order dismissing MSHA's citations herein.

Since Sanger's motion of dismissal is to be granted it is not
necessary to consider any additional issues raised in the case.

                           ORDER

 1. In WEST 88-275-M: Citation No. 3076869 and all penalties

therefor are vacated.

 2. In WEST 89-71-M: Citation No. 3074994 and all penalties

therefor are vacated.

    3. WEST 88-275-M and WEST 89-71-M are dismissed.

                            John J. Morris
                            Administrative Law Judge

FOOTNOTES START HERE

 1. Citation No. 3076869 alleges Sanger violated 30 C.F.R.

56.14007; Citation No. 3074994 alleges the company violated 30
C.F.R. 56.12028.

 2. The cited portion of the Constitution provides that

Congress shall have the right:

      To exercise exclusive Legislation in all cases

whatsoever, over such District (not exceeding ten Miles square)
as may, by Cession of particular States, and the Acceptance of
Congress, become the Seat of the Government of the United
States, and to exercise like Authority over all Places purchased

by the Consent of the Legislature of the State in which the Same
shall be, for the Erection of Forts, Magazines, Arsenals,
dock-Yards, and other needful Buildings; . . . .

 3. The cited portion of the Constitution provides that

Congress shall have the right

         to regulate Commerce with foreign Nations and among the
         several States, and with the Indian Tribes.

 4. The cited statute, a portion of the Administrative

Procedure Act, provides in part as follows:

      (a) Each agency shall make available to the public

information as follows:

      (1) Each agency shall separately state and currently

publish in the Federal Register for the guidance of the public--

      (A) descriptions of its central and field organization

and the established places at which, the employees (and in the
case of a uniformed service, the members) from whom, and the
methods whereby, the public may obtain information, make
submittals or requests, or obtain decisions;

       (B) statements of the general course and method by

which its functions are channeled and determined, including the
nature and requirements of all formal and informal procedures
available;

      (C) rules of procedure, descriptions of forms available

or the places at which forms may be obtained, and instructions as
to the scope and contents of all papers, reports, or
examinations;

      (D) substantive rules of general applicability adopted

as authorized by law, and statements of general policy or
interpretations of general applicability formulated and adopted
by the agency; and

         (E) each amendment, revision, or repeal of the

foregoing.

 5. Federal Register, Vol. 43, No. 63.

 6. The above cited provision, as it relates to the Federal

Register and the Code of Federal Regulations, contains the
following definition:

      "Federal agency" or "agency" means the President of the

United States, or an executive department, independent board,
establishment, bureau, agency, institution, commission, or
separate office of the administrative branch of the Government of
the United States but not the legislative or judicial branches of
the Government.

 7. Many matters under the Secretary's jurisdiction have been

published in the Federal Register and recodified in the Code of
Federal Regulation (CFR). See various subjects published in
C.F.R. 20, 29, 30, 41, 48 and 50. Volume 30, Part I establishes
MSHA's official emblem and the balance of 30 C.F.R. generally
deals with mining. Included in 30 C.F.R. are the Secretary's
mandatory regulations relating to mining.

 8. The regulation provides:

        56.12028 Testing grounding systems.

      Continuity and resistance of grounding systems shall be

tested immediately after installation, repair, and modification;
and annually thereafter. A record of the resistance measured
during the most recent tests shall be made available on a request
by the Secretary of his duly authorized representative.