Sanger Rock and Sand

Plain-English summary

MSHA cited Sanger Rock and Sand for alleged violations involving 30 C.F.R. §§ 56.12028 and 56.14007. The ALJ vacated the citations after finding that MSHA had not shown compliance with the Administrative Procedure Act's publication requirements for the agency's organization and delegated authority. On review, the Commission declined to decide the issue because the Secretary's Government Manual evidence had not been presented to the ALJ. It remanded the case for the ALJ to consider whether the publication satisfied the APA and what effect the Mine Act's exclusion of the APA might have.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.12028 and 56.14007
• Outcome: The case was remanded for further consideration of the APA publication and Mine Act issues.
• Key point: The Commission required the ALJ to address new publication evidence and the possible effect of 30 U.S.C. § 956 before resolving the citation challenge.

Full text (FMSHRC public release)

CCASE:
MSHA V. SANGER ROCK AND SAND
DDATE:
19900919
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                           September 19, 1990

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.                              Docket Nos. WEST 88-275-M
                                            WEST 89-71-M

SANGER ROCK AND SAND

                ORDER

BY: Backley, Acting Chairman; Doyle and Nelson, Commissioners

In this civil penalty proceeding arising under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (1988) ("Mine Act"),
Commission Administrative Law Judge John Morris, in a May 17, 1990
decision, vacated two citations issued to Sanger Rock and Sand ("Sanger")
and dismissed the proceeding on the ground that the Secretary of Labor and
the Department of Labor's Mine Safety and Health Administration ("MSHA")
had failed to comply with section 552(a)(1)(A) of the Administrative
Procedure Act, 5 U.S.C. 552(a)(1)(A) ("APA"). On June 11, 1990, the
Secretary filed a combined petition for review and motion for summary
reversal of Judge Morris' decision. By order issued June 25, 1990, the
Commission directed review of the Secretary's petition but stayed briefing
pending consideration of the Secretary's motion for summary reversal.
Sanger has filed oppositions to both the Secretary's petition for review
and motion for summary reversal.

On August 14, 1987, and April 13, 1988, MSHA Inspector Jaime Alvarez

issued citations to Sanger for violations of 30 C.F.R. 56.12028 and
30 C.F.R. 56.14007, respectively. Sanger contested both citations. At
hearing and in its post-hearing brief, Sanger challenged the validity of
the citations on the ground that the Secretary and MSHA had failed to
comply with section 552(a)(1)(A) of the APA. That provision provides that
each federal agency shall publish in the Federal Register "descriptions of

Page 2

its central and field organization and the established places at which, the
employees ... from whom, and the methods whereby, the public may obtain
information, make submittals or requests, or obtain decisions." Section
552(a) further provides that "[e]xcept to the extent that a person had
actual and timely notice of the terms thereof, a person may not in any
manner be required to resort to, or be adversely affected by, a matter
required to be published in the Federal Register and not so published."
5 U.S.C. 552(a).

Page 3

~1756
Finding no evidence that the Secretary or MSHA had published the
required information, the judge concluded that Sanger had no notice of
the inspector's duties and delegated authority or MSHA's central and field
organizations. Citing Rowell v. Andrus, 631 F.2d 699 (1Oth Cir. 1980),
United States v. Two Hundred Thousand Dollars ($200,000) in United States
Currency, 590 F. Supp. 866 (D. Fl. 1984), and Pinkus v. Reilly,
157 F. Supp. 548 (D.N.J. 1957), the judge determined that the Secretary's
failure to comply with the APA warranted vacation of the citations as
invalidly issued.

On review the Secretary has submitted an entry from the United States

Government Manual 1989/1990 ("Manual") that refers to MSHA at pp. 406, 409
and 424-25. The Secretary argues that the entry in the Manual constitutes
compliance with section 552(a)(1)(A) of the APA since the Manual is
designated as a special edition of the Federal Register. See 1 C.F.R. 9.1.
In response, Sanger argues that the Manual entry does not sufficiently
provide the information required by section 552(a)(1)(A) of the APA.

The manual entry submitted on review was not presented below to

Judge Morris, but the Secretary argues that the Commission can take
judicial notice of the contents of the Federal Register, citing 44 U.S.C.
1507. However, section 113(d)(2)(A)(iii) of the Mine Act, 30 U.S.C.
823(d)(2)(A)(iii), provides, inter alia, "Except for good cause shown, n
assignment of error by any party shall rely on any question of fact or law
upon which the administrative law judge had not been afforded an
opportunity to pass."

The legal issues presented on review are jurisdictional in nature and

we are mindful of the Secretary's arguments relating to judicial notice of
Federal Register contents. Nevertheless, since the Manual entry was not
submitted to the judge and since the judge is more appropriately positioned
to deal with any factual issues surrounding the sufficiency of the Manual
entry vis-a-vis section 552(a)(1)(A) of the APA, we conclude that it is
preferable to remand the matter to the judge. The judge shall determine
whether the Manual publication satisfies applicable APA requirements. In
his reconsideration of this matter, we also direct the judge to determine
what effect, if any, section 507 of the Mine Act, 30 U.S.C. 956, has on
the issues presented. 1/

1/ Section 507 of the Mine Act provides:

  Except as otherwise provided in this Act, the
  provisions of sections 551-559 and section 701-706 of
  title 5 of the United States Code shall not apply to
  the making of any order, notice, or decision made

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 pursuant to this Act, or to any proceeding for the
 review thereof.

30 U.S.C. 956.

Page 5

~1757
Accordingly, we remand the matter to the judge for further
consideration of the issues set forth above. 2/

Distribution

Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

James F. Baun, President
Sanger Rock & Sand
17125 E. Kings Canyon Road
Sanger, California 93657

Susanne Lewald, Esq.
Office of the Solicitor
U.S. Department of Labor
71 Stevenson Street, Suite 1110
San Francisco, California 94119

Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
280 Colonnade Center
1244 Speer Boulevard
Denver, Colorado 80204

2/ Pursuant to section 113(c) of the Mine Act, we have designated ourselves
a panel of three Commissioners to exercise the powers of the Commission in
this matter.