Consolidation Coal Company

Plain-English summary

Consolidation Coal was cited for reporting more employee hours than its payroll and other time records showed at its Robinson Run No. 95 and Blackstone No. 1 mines. The company had added time that miners spent on mine property before and after their paid shifts. The Commission held that the Part 50 reporting rules were valid and enforceable, civil penalties could be assessed for regulatory violations, and the regulation required operators to use payroll or other time records for hours worked. It also held that Consol had fair notice of the reporting requirement and that the judge's finding of high negligence was supported by substantial evidence. The Commission affirmed the violations in all 24 citations and the high-negligence finding.

Decision snapshot

• Cited standard: 30 C.F.R. § 50.30-1(g)(3)
• Governing provisions: 30 C.F.R. §§ 50.1, 50.20, and 50.30; 30 U.S.C. § 957
• Outcome: All 24 nonserious, non-S&S citations and the high-negligence finding were affirmed. The decision did not change the judge's civil-penalty assessments.
• Key point: Mine operators must report hours worked from payroll or other time records and may not add unpaid time spent on mine property to those figures.

Full text (FMSHRC public release)

CCASE:
MSHA V. CONSOLIDATION COAL
DDATE:
19920609
TTEXT:
June 9, 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) Docket Nos. WEVA 90-3
WEVA 90-8
v. WEVA 89-234-R through
WEVA 89-245-R
CONSOLIDATION COAL COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners
DECISION
BY: Ford, Chairman; Backley, Doyle, and Nelson, Commissioners
This consolidated contest and civil penalty proceeding arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Mine
Act" or "Act") and involves the validity of 24 citations issued to
Consolidation Coal Company ("Consol") alleging violations of 30 C.F.R.
§ 50.30-1(g)(3).(Footnote 1) The citations allege that Consol violated th
cited

1 30 C.F.R. § 50.30 provides, in pertinent part:
§50.30. Preparation and submission of
MSHA Form 7000-2--Quarterly Employment and
Coal Production Report.
(a) Each operator of a mine in which an
individual worked during any day of a
calendar quarter shall complete a MSHA
Form 7000-2 in accordance with the
instructions and criteria in §50.30-1 and
submit the original to the MSHA Health and
Safety Analysis Center.... Each operator
shall retain an operator's copy at the
mine office nearest the mine for 5 years
after the submission date.

§50.30-1 General instructions for
completing MSHA Form 7000-2.

(g) Employment, Employee Hours, and Coal
Production
~957
regulation by significantly over-reporting to the Secretary of Labor's Mine
Safety and Health Administration ("MSHA") the number of hours that its
employees worked at its Robinson Run No. 95 Mine and its Blackstone No. 1 Mine
in each quarterly report for 1986, 1987 and 1988. Commission Chief
Administrative Law Judge Paul Merlin upheld each of the citations. 12 FMSHRC

Page 2

167 (January 1990)(ALJ); 12 FMSHRC 1129 (May 1990)(ALJ). Consol petitioned
for review of the judge's decision, asserting that the judge erred in
(A) concluding that the cited regulation was validly promulgated in accordance
with the Mine Act; (B) concluding that the Secretary of Labor is authorized
under the Act to assess civil penalties for violations of the cited
regulation; (C) finding that Consol violated the regulation; and (D) finding
that the violations were the result of Consol's high negligence. We granted
Consol's petition and heard oral argument. For the reasons that follow, we
affirm the judge's decision.
I.
Factual and Procedural Background
The citations were issued in 1989 following an MSHA audit of the records
that Consol is required to maintain under 30 C.F.R. Part 50. Section 50.30
requires coal mine operators to submit information concerning employment and
coal production to MSHA, on Form 7000-2, on a quarterly basis. One column of
the form requires operators to report the total number of "employee-hours
worked" during the quarter. From 1986 through 1988, Consol reported to MSHA
the total number of hours that it estimated employees were present at its
mines rather than the number of hours that employees worked. Consol obtained
this estimate by adding additional time to the number of employee-hours
reflected in its payroll or other time records. It added 45 minutes per
employee per day for hourly employees, and 90 minutes per employee per day for
salaried employees. The citations charge that Consol "significantly over
reported employee hours" on Form 7000-2 by adding 45 minutes each day for
hourly employees to cover "time spent on mine property before and after work

(3) Total employee-hours worked during the
quarter: Show the total hours worked by
all employees during the quarter covered.
Include all time where the employee was
actually on duty, but exclude vacation,
holiday, sick leave, and all other offduty
time, even though paid for. Make
certain that each overtime hour is
reported as one hour, and not as the
overtime pay multiple for an hour of work.
The hours reported should be obtained from
payroll or other time records. If actual
hours are not available, they may be
estimated on the basis of scheduled hours.
Make certain not to include hours paid but
not worked.
~958
hours," in violation of 30 C.F.R. § 50.30-1(g)(3).
At the outset of this proceeding before the judge, Consol filed a motion
to dismiss on the grounds that (1) Part 50 of the Secretary's regulations is
unenforceable because it was improperly promulgated by the Secretary of the
Interior; and (2) civil penalties cannot be imposed under section 110(a) of
the Mine Act for the alleged violations. Consol argued that, because the

Page 3

regulation in question was promulgated after the Mine Act was enacted by
Congress but before the Act's effective date, the regulation was invalid. In
the alternative, it argued that the civil penalties assessed by the Secretary
were not authorized because, under the Mine Act, penalties may be assessed
only for violations of the Act and for violations of mandatory safety or
health standards. In an order dated January 24, 1990, Chief Administrative
Law Judge Paul Merlin denied Consol's motion. 12 FMSHRC 167 (January
1990)(ALJ). The judge held that the Secretary of the Interior was authorized
to issue the reporting regulations at the time of their promulgation and that
civil penalties can be imposed by the Secretary of Labor for violations of
these regulations. Consol then filed a petition seeking interlocutory review
of the judge's order, which was denied by the Commission on March 8, 1990.
The parties next filed with the judge "Joint Stipulations of Law and
Facts" and they each filed separate motions for summary judgment. In a
decision dated May 24, 1990, the Judge granted the Secretary's motion for
summary judgment, upheld each of the citations and assessed civil penalties.
12 FMSHRC 1129 (May 1990)(ALJ). The judge determined that Consol violated
section 50.30-1(g)(3) because MSHA has consistently required the reporting of
hours worked as recorded on payroll records or other time records.
The stipulated facts are set out in full in the judge's decision.
12 FMSHRC at 1133-42. Consol requires that miners report to work prior to the
beginning of their shift in order to prepare for work and requires that they
remain on mine property after their shift to return equipment and supplies
prior to departing. Stips. 24 & 25. Because miners are not paid for such
time, it is not reflected on Consol's payroll records. Stip. 28. Consol is
required by section 50.20 to report occupational injuries and accidents to
MSHA. Stip. 11. Some of the injuries reported by Consol to MSHA during 1986-
88 occurred before and after the miners' shifts. Stips. 20 & 21. As a
consequence, Consol considered that all time that employees were on mine
property was "exposure time." Stip. 23.
No accurate record is kept by Consol of the amount of pre- and postshift
time employees are on mine property. Stip. 27. Consol estimates that
each hourly employee spends 45 minutes more per day on mine property than is
reflected on its payroll records. Stip. 37. Consol believes that if the 45
minute estimate is added to the time shown in the payroll records, the sum
reflects the number of hours each hourly employee spends at the mine site on a
daily basis, i.e., the exposure hours. Stip. 38. For purposes of this
proceeding, the Secretary agreed that Consol's practice of adding 45 minutes
to the time shown in the payroll records "reflect[s] the actual time spent by
hourly employees at [Consol's mines] on the days when they are at the mine
site." Stip. 46. The parties further stipulated that payroll records
reflecting time worked are not kept for salaried employees and that Consol
~959
estimates that salaried employees spend an additional 90 minutes per day on
mine property. Stips. 30 & 31. The Secretary did not cite Consol for
reporting the estimated exposure hours of salaried employees. Stip. 33.
Section 50.20(a) requires mine operators to report to MSHA any accident,
occupational injury or occupational illness. See Stip. 10. The Commission
has interpreted section 50.20(a) to require the reporting of an occupational

Page 4

injury, as defined at section 50.2(e), if it occurs on mine property, whether
or not such injury occurred during the miner's shift. Freeman United Coal
Mining Co., 6 FMSHRC 1577, 1578-79 (July 1984); See Stip. 11. In Freeman, the
Commission held that there need not be a causal nexus between the miner's work
and the injury sustained. 6 FMSHRC at 1578-79. The injury in that case
occurred when a miner experienced back pain while putting on his work boots in
the mine's wash house about one hour before the beginning of his shift. 6
FMSHRC at 1578. The Commission affirmed the judge's finding that the operator
violated section 50.20(a) by not reporting the injury to MSHA.
Prior to the Commission's decision in Freeman, Consol reported to MSHA
as "hours worked" the number of employee hours set forth in its payroll
records, but not pre- and post-shift exposure time. Stip. 42. Likewise,
Consol did not report, under section 50.20(a), injuries that occurred to
miners before and after their shifts. Id. After the Freeman decision, Consol
began to report such pre- and post-shift incidents and also exposure time on
mine property. Stip. 43. Consol did not inform MSHA that it had changed its
method of calculating reportable hours. Stip. 45. The Secretary did not
issue any policy memoranda or otherwise provide any guidance to operators
regarding the effect of the Freeman decision. Stip. 44. The Secretary did
not discover that Consol was including pre- and post-shift hours on its Form
7000-2 until MSHA audited Consol's records. Stip. 45.
MSHA uses the data gathered from sections 50.20 and 50.30 to calculate
rates of injury occurrence ("incident rates") for each mine, operator, state,
MSHA District and Subdistrict, and for the nation. Stip. 13; 30 C.F.R.
§ 50.1. The incident rate for a given mine, for example, is calculated b
dividing the total number of occupational injuries, occupational illnesses and
accidents reported in a quarter (multiplied by a constant: 200,000) by the
total employee-hours worked during such quarter. 30 C.F.R. § 50.1; Gov. Exh.
1, p. 17. Incident rates are used by MSHA to analyze injury and illness
trends and to allocate inspection resources. Stip. 16.
In his order of January 24, 1990, the judge determined that 30 C.F.R.
Part 50 was validly promulgated by the Secretary of the Interior under the
Coal Mine Health and Safety Act of 1969, 30 U.S.C. 801 et seq. (1976)(amended
1977)(the "Coal Act") and was properly transferred to the Secretary of Labor
by the Mine Act. The Secretary of the Interior promulgated Part 50 on
December 30, 1977, after the enactment date of the Mine Act, November 9, 1977,
but before its effective date, March 9, 1978. The judge determined that Part
50, adopted under the Coal Act, remained in effect as a result of section
301(c)(2) of the Federal Mine Safety and Health Amendments Act of 1977,
~960
30 U.S.C. § 961(c)(2)("Amendments Act").(Footnote 2) 12 FMSHRC at 170. He
rejected Consol's argument that the Secretary of the Interior lacked authority
to issue the reporting regulations after the Mine Act was enacted, and that
only regulations in effect on its enactment date were validly transferred from
the Department of the Interior to the Department of Labor. 12 FMSHRC at 170-
71.
The judge also rejected Consol's argument that, because Part 50 is a
regulation, not a mandatory safety or health standard, penalties cannot be
assessed for the alleged violations. 12 FMSHRC at 172. He held that a

Page 5

violation of Part 50 is also a violation of the Mine Act. 12 FMSHRC at 173.
He reasoned that sections 110(a), 104(a) and 105(a) of the Mine Act, which
authorize the Secretary of Labor to issue citations for violations of
regulations and to notify the operator of penalty assessments for such
citations, must be read in concert. Id. The judge concluded that the
Secretary is authorized to assess penalties for violations of Part 50.
In his decision of May 24, 1990, the judge determined that the subject
regulation requires each operator to report the total hours worked by all
employees, and that for hourly employees the total hours worked for reporting
purposes are the hours recorded on payroll or other similar time records.
12 FMSHRC at 1142. He determined that the Secretary has consistently
interpreted the language of the regulation to require operators to obtain
"hours worked" from such records and that her interpretation of the regulation
is dispositive of the case. Id. He granted the Secretary's Motion for
Summary Judgment and found that Consol had violated the subject regulation.

2 Section 301(c) of the Amendments Act provides in part:
(c) Unexpended appropriations; personnel; property;
records; obligations; commitments; savings provisions;
pending proceedings and suits

(2) All orders, decisions, determinations, rules,
regulations, permits, contracts, certificates,
licenses, and privileges (A) which have been issued,
made, granted, or allowed to become effective in the
exercise of functions which are transferred under this
section by any department or agency, any functions of
which are transferred by this section, and (B) which
are in effect at the time this section takes effect,
shall continue in effect according to their terms
until modified, terminated, superseded, set aside,
revoked, or repealed by the Secretary of Labor, the
Federal Mine Safety and Health Review Commission or
other authorized officials, by any court of competent
jurisdiction, or by operation of law.
~961
The judge determined, however, that the violations were non-serious and
technical in nature because the method the Secretary uses to calculate
incident rates produces "flawed data." 12 FMSHRC at 1144-46. He determined
that the time frame for injuries that must be reported to MSHA for use in the
numerator of the formula is not consistent with the time frame for hours
worked that must be reported to MSHA for use in the denominator of the
formula. 12 FMSHRC at 1144. The judge held that the formula of 30 C.F.R.
§ 50.1 produces "an inherently flawed injury incidence rate" because "th
numerator and denominator [of the formula] are mismatched with the former
premised upon place but the latter predicated upon time and place." Id.
The judge concluded that the violations were the result of Consol's high
negligence. 12 FMSHRC at 1146. He found that Consol intentionally changed
its method of reporting hours worked and took "the law into its own hands by

Page 6

deciding for itself what the law means and how it can best be applied." Id.
II.
Disposition of Issues
A. Whether the Regulations in 30 C.F.R. Part 50 are Enforceable.
The judge concluded that section 301(c)(2) of the Amendments Act
(n. 2, supra) is a broad savings clause that carried over to the Mine Act the
Part 50 regulations promulgated by the Secretary of the Interior under the
Coal Act. 12 FMSHRC at 170. In relevant part, section 301(c)(2) provides
that all "regulations ... which have been issued ... or allowed to become
effective in the exercise of functions which are transferred under this
section ... which are in effect at the time this section takes effect, shall
continue in effect according to their terms until modified, terminated,
superseded, set aside, revoked or repealed by the Secretary of Labor...."
Section 301(a) of the Amendments Act, 30 U.S.C. § 961(a), transferred to the
Secretary of Labor the enforcement functions of the Secretary of the Interior
under the Coal Act and the Federal Metal and Nonmetallic Safety Act, 30 U.S.C.
§ 721 et seq. (1976)(repealed)(the "Metal Act"). Section 307 of th
Amendments Act, 30 U.S.C. § 801 note, provides that "this Act and the
amendments made by this Act ... shall take effect 120 days after the date of
enactment of this Act." The Act was enacted on November 9, 1977, and became
effective March 9, 1978.
Within the meaning of section 301(c)(2) of the Amendments Act, the
regulation in question was "issued" and "allowed to become effective" by
Interior in the exercise of its mine safety and health functions and the
regulation was "in effect" on the date the Mine Act became effective.
Consol(Footnote 3) argues that the pivotal date is the Mine Act's enactment
date rather than its effective date. Consol contends that passage of the Mine
Act prohibited the Department of the Interior's promulgation of Part 50
because

3 The Commission permitted amicus curiae briefing by the National Coal
Association ("NCA"), a mining industry trade association. Reference in this
decision to arguments advanced by Consol includes the arguments of the NCA.
~962
Congress intended to place mine safety and health rulemaking authority in the
hands of the Secretary of Labor immediately upon its enactment. Consol
maintains that, because Congress did not trust the Department of the Interior
to protect the safety and health of miners, Congress curtailed Interior's
rulemaking authority so that only those standards and regulations already in
effect on the enactment date of the Mine Act would be transferred from
Interior to Labor.
In making its arguments, Consol relies upon section 301(b)(1) of the
Amendments Act, 30 U.S.C. § 961(b)(1).(Footnote 4) It contends that this
provision states that only regulations that were "in effect on November 9,
1977" were to be transferred to the Secretary. Consol concludes that
"Interior's attempted promulgation of Part 50 (on December 30, 1977) after
enactment of the Mine Act, and prior to its effective date (March 9, 1978) was
an ultra vires attempt to transfer to Labor regulations that did not exist
when the Mine Act was passed." Consol Br. 10.

Page 7

We agree with the judge that Consol's reliance on section 301(b)(1) of
the Amendments Act is misplaced. The section is ambiguous in that one phrase
refers to "standards and regulations" under the Coal Act while the section's
title is "Existing mandatory standards; ..." and elsewhere it refers to
"mandatory standards" or "mandatory health or safety standards." Section
301(c)(2) by its express terms, clearly governs "regulations," such as the
regulation at issue in this case. The judge concluded that section 301(b)(1),
when read in its entirety, governs mandatory standards, not the regulation at
issue. 12 FMSHRC at 169. The legislative history does not clarify section
301(b)(1). The Senate Conference Report for the Mine Act, however, discusses
the "carry over" of existing safety and health standards separately from its
discussion of the continuation of existing regulations, thereby providing

4 Section 301(b) of the Amendments Act provides in part:
(b) Existing mandatory standards; review by advisory
committee; recommendations
(1) The mandatory standards relating to mines,
issued by the Secretary of the Interior under the
Federal Metal and Nonmetallic Mine Safety Act [30
U.S.C. 721 et seq.] and standards and regulations
under the Federal Coal Mine Health and Safety Act of
1969 [30 U.S.C. 801 et seq.] which are in effect on
November 9, 1977, shall remain in effect as mandatory
health or safety standards applicable to metal and
nonmetallic mines and to coal mines respectively under
the Federal Mine Safety and Health Act of 1977 [30
U.S.C. 801 et seq.] until such time as the Secretary
of Labor shall issue new or revised mandatory health
or safety standards applicable to metal and
nonmetallic mines and new or revised mandatory health
or safety standards applicable to coal mines.

~963
support for the judge's construction. S. Rep. No. 461, 95th Cong. 1st Sess.
64-65 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977, 1342-43 (1977) ("Legis. Hist."); See also Sec.
Br. 7, n. 5. We conclude that the more logical interpretation of section
301(b)(1) is to limit its application to mandatory standards.
The language of section 301(b)(1), moreover, does not support Consol's
position that the Secretary of the Interior was required to maintain the
status quo with respect to regulation during the period between enactment of
the Mine Act and its effective date. Even assuming that section 301(b)(1)
applies to regulations, it simply provides that standards and regulations in
effect on November 9, 1977, were to remain in effect until modified by the
Secretary of Labor. It does not reference standards and regulations that were
not yet in effect on that date or that were modified by the Secretary of the
Interior after that date.
Finally, we agree with the Secretary's argument that Consol's

Page 8

interpretation of the transfer provisions leads to illogical results that are
at odds with the statute's underlying purposes. See, 2A Sutherland Statutory
Construction, § 45.12, at 61 (Singer 5th ed. 1992 rev.). Consol's
interpretation would create a four-month gap during which no agency had the
authority to issue standards or regulations. Given its concern with the
safety of the nation's miners, it seems highly unlikely that Congress intended
to prohibit regulatory action during that period. Thus, we affirm the judge's
conclusion that the regulations at Part 50 are valid and enforceable.
B. Whether Civil Penalties may be Assessed for Violations of 30
C.F.R. § 50.30-1(g)(3).
Consol argues that even if Part 50 is deemed enforceable, the Secretary
is without authority to propose civil penalties for violations of Part 50
regulations because they are not mandatory health or safety standards
promulgated in accordance with the procedural requirements of section 101 of
the Coal Act or the Mine Act.(Footnote 5) Consol contends that section 110(a)
of the Mine Act authorizes the assessment of civil penalties only for
violations of mandatory health or safety standards and violations of the Mine
Act. Consol asserts that Congress, when considering the legislation that
became the Mine Act, expressly rejected the civil penalty provisions contained
in the Senate

5 It is undisputed that the Part 50 regulations are not mandatory safety
or health standards. They were promulgated under section 508 of the Coal Act,
30 U.S.C. § 957, while mandatory standards would have been promulgated under
section 101 of the Coal Act. Mandatory health and safety standards consist of
the interim standards established by titles II and III of the Coal Act and
standards promulgated pursuant to section 101 of the Coal Act and section 101
of the Mine Act. The interim standards were carried over to titles II and III
of the Mine Act. See, e.g. section 3(l) of the Coal Act, 30 U.S.C. § 802(l)
(definition of mandatory health or safety standard carried over without change
in the Mine Act). See also, UMWA v. Dole, 870 F.2d 662, 668 (D.C. Cir. 1989).
~964
and House bills as introduced. Those bills authorized the assessment of a
civil penalty for a violation of the Act, safety and health standards or "any
rule, order or regulation promulgated pursuant to this Act." Consol Br. 19,
quoting S. 717 and H.R. 4287, as introduced.
The Secretary contends that if the Mine Act, including sections 104(a),
105(a) and 110(a), is read as a whole, civil penalties must be assessed for
violations of regulations as well as safety and health standards. She
contends that this interpretation is particularly apt in cases such as this
where the regulation in issue, Part 50, implements a specific provision of the
Mine Act, section 103(d). That section provides that operators shall keep
records of "man-hours worked" and report such information "at a frequency
determined by the Secretary, but at least annually." 30 U.S.C. § 813(d).
Section 110(a), if read in isolation, appears to authorize civil
penalties only for violations of the Act and of mandatory safety and health
standards. It is significant, however, that section 104(a) of the Mine Act
authorizes MSHA inspectors to issue a citation to an operator not only for a
violation of the Act, but also for a violation of a health or safety standard,

Page 9

rule, order, or regulation promulgated pursuant to the Act. 30 U.S.C.
§ 814(a). Section 105(a), 30 U.S.C.§ 815(a), requires the Secretary to
notify the operator of the proposed civil penalty to be assessed for the
violation cited.
The legislative history of the Mine Act does not corroborate Consol's
position. The Senate bill (S. 717), as introduced, provided for the
assessment of a civil penalty for a "violation of a provision of this Act or a
safety or health standard prescribed by or under this Act, or any rule, order,
or regulation promulgated pursuant to this Act...." Legis. Hist. at 157. The
original House bill (H.R. 4287) contained identical language. Legis. Hist. at
235.
When the House bill was reported by the Committee on Education and
Labor, the language from section 109(a) of the Coal Act was substituted for
the language quoted above but the Senate bill kept its original language. The
bills were then passed by their respective houses of Congress with their civil
penalty language unchanged. Thus, the Senate bill contained language
specifically referencing "regulations," while the House bill did not.
The Conference Committee subsequently adopted the House bill for other
reasons. The Conference Report states:
The Senate bill and the House amendment provided
for a civil penalty of not more than $10,000 for each
violation of the Act or a standard promulgated
thereunder. The House amendment provided that each
occurrence of a violation of a standard constitute a
separate offense. The Senate bill did not so provide.
The conference substitute conforms to the House
amendment.
~965
S. Rep. No. 461 at 57, Legis. Hist. at 1335. This Report indicates that the
Conference Committee focused on whether each occurrence of a violation should
be treated as a separate offense. Thus, it does not appear that Congress
intentionally dropped the Senate's language as to regulatory violations, as
claimed by Consol.
In sum, we agree with the Secretary's interpretation of the Mine Act,
which seeks to harmonize sections 104(a), 105(a) and 110(a). Each part of a
statute should be construed in connection with the other parts "so as to
produce a harmonious whole." Sutherland, § 46.05 at 103. Such an
interpretation advances the goals of the Act and maintains the importance of
civil penalties as a deterrence. Further, nothing in the Act or its
legislative history indicates that Congress rejected civil penalties for
regulatory violations.
Finally, we agree that Part 50 implements the responsibilities of the
Secretary set forth in section 103 of the Act. These regulations constitute
implementation of section 103 pursuant to rulemaking authority under section
508 of the Mine Act, 30 U.S.C. § 957. Accordingly, we affirm the judge's
conclusion that a civil penalty may be assessed for a violation of section
50.30-1(g)(3).
C. Violation of the Regulation
Consol argues that the judge's decision upholding the Secretary's

Page 10

interpretation of 30 C.F.R. § 50.30-1(g)(3) ignores the plain language of the
regulation and fundamental rules of statutory construction. Consol notes that
"the regulation clearly differentiates between on-duty (on mine property) time
and off-duty (off mine property) time," and that off-duty time is to be
excluded from the calculation of the number of employee hours worked. Consol
Br. 26. It asserts that the examples of off-duty work listed in the
regulation ("vacation, holiday, sick leave and all other off-duty time") occur
off mine property. From this it reasons that off-duty time equates with time
spent off mine property and that on-duty time equates with time spent on mine
property. Consol maintains that the judge's interpretation of the term "hours
worked" to equate with hours paid while on mine property has no support in the
language of the regulation. It contends that the time spent by miners, before
and after shift, performing miscellaneous tasks, such as picking up and
returning equipment and supplies, is to be included in hours worked under the
regulation, even though employees are not compensated for such time, because
they are exposed to the hazards of mining during that time. It points out
that MSHA considers on-duty, remunerated time to include time when no labor is
being performed, such as meal breaks, because employees are "on duty" at the
work site. Consol argues that it is inconsistent to exclude time when work is
being performed while including paid work breaks.
Consol also points to the fact that under section 50.1, incident rates
are to be calculated using the "hours of employee exposure" rather than the
hours of remunerated work. The reporting of hours worked requires the
reporting of those hours "that are consistent with the possible occurrence of
reportable incidents used to calculate the intended accurate incidence rate."
Consol Br. 28. Consol maintains that it cannot be penalized for logically
~966
interpreting Part 50 in a manner that is consistent with the express terms of
section 50.30-1(g)(3).
Consol also argues that, because its payroll records do not accurately
reflect time worked, it is authorized under the regulation to estimate the
total number of hours worked. The parties stipulated that Consol's estimate
as reported to MSHA "reflect the actual time spent by hourly employees [at its
mines]." Stip. 46. Consol contends that it was justified in reporting these
estimated hours since actual hours were not available from its "payroll or
other time records."
We disagree with Consol's view that the language of the regulation is
plain and we conclude that the Secretary's interpretation is reasonable.
Section 50.30 (n. 1 supra) requires mine operators to complete MSHA Form
7000-2 in accordance with the instructions found in section 50.30-1, and to
submit the completed form to MSHA. Section 50.30-1(g)(3) requires operators
to show the "total hours worked by all employees during the quarter covered."
"[H]ours worked" is not defined here or in section 50.2. The regulation
further instructs operators to "[i]nclude all time where the employee was
actually on duty...." The term "on duty" is likewise not defined. The
regulation provides that "hours reported should be obtained from payroll or
other time records" but indicates that these figures may require modification
to exclude "vacation, holiday, sick leave, and all other off-duty time, even
though paid for." Overtime hours are to be reported as straight time rather

Page 11

than as a multiple. Thus, although the language of the regulation is not
plain, it would appear that an operator is required to use its payroll or
other time records to calculate gross employee hours worked; to subtract any
time included in this calculation that represents time not worked, such as
sick leave, and any multiple hours used to calculate overtime pay; and to
report the resulting figures to MSHA. This reported figure would include all
time reflected in the payroll records "where the employee was actually on
duty."
Payroll or other time records for hourly employees typically represent
all hours worked, and the regulation instructs operators to use such records
as a starting point for the calculation required. The regulation does not
instruct operators to add to those figures any unpaid hours worked that are
not included in the payroll or other time records. The only modifications
authorized are for the purpose of deleting hours paid and not worked rather
than for adding hours worked and not paid. We discern no legal justification
for reading into this regulation the right of an operator to include all time
that miners are on mine property.
The only provision of the regulation that provides an exception from the
use of payroll or other time records states that "[i]f actual hours are not
available, they may be estimated on the basis of scheduled hours." 30 C.F.R.
§ 50.30-1(g)(3). MSHA has consistently interpreted this sentence to authoriz
mine operators to submit estimated hours as hours worked only if payroll or
~967
other time records do not reflect actual hours worked.(Footnote 6) Stip. 39;
Sec. Br. 17. This exception cannot be reasonably read to allow an operator to
augment the hours worked as reflected in the payroll records with additional
unpaid hours, during which employees are on mine property.
MSHA's interpretation of the Part 50 regulations was further clarified
in informational guidelines. Although these guidelines are not binding on
MSHA or the Commission, they do provide "an accurate guide to current MSHA
policies and practices." Coal Employment Project v. Dole, 889 F.2d 1127, 1130
n. 5 (D.C. Cir. 1989). The guideline in effect between March 1978 and
December 1986 paraphrased the regulation and stressed that hours paid but not
worked were not to be reported. Gov. Exh. 6, p. 16. When the guideline was
revised in December 1986, it included a new sentence indicating that operators
are "not [to] include time spent on mine property outside of regularly
scheduled shifts, i.e., bathhouse, parking lot, etc." Gov. Exh. 1, p. 15;
Stip. 41. We agree with the judge that this added language did not signal a
change in MSHA's interpretation of the regulation. The added language made it
explicit that operators are to submit figures for employee hours worked based
upon their payroll records rather than on information or estimates that
reflect the time employees are present at the mine.
Consol focuses on the term "hours worked" and contends that, because its
employees "work" before and after each shift, the time spent performing such
"work" should fall within the concept of "hours worked." Consol asserts that
it is inconsistent for the Secretary to exclude such unremunerated time worked
while including time that miners are paid while not working, such as paid meal
breaks. We do not dispute the logic behind Consol's argument that miners
perform "work" before and after their regular shifts and agree that this time

Page 12

could or even should have been incorporated by the Secretary into the concept
of "hours worked." The Secretary, however, chose not to include these unpaid
hours in the description of "hours worked" in the regulation or guidelines.
Consol also argues that the incident rates calculated by the Secretary
under the Mine Act should be comparable to incident rates calculated by the
Secretary for employers covered by the Occupational Safety and Health Act of
1970, 29 U.S.C. § 651 et seq. ("OSHAct"). It asserts that MSHA's Part 50
regulations should be interpreted in pari materia with the Secretary's
requirements under the OSHAct, which do not require that reportable time
equate with compensated time. While we agree with Consol that, as a matter of
policy, the incident rates calculated by the Secretary for the mining industry
should be comparable with the incident rates of other industries, the Mine Act
does not explicitly require that the method of calculating incident rates
under the Mine Act be consistent with that used under the OSHAct. As a
consequence, Consol's assertion that, as a matter of law, the Secretary's Part
50 regulations must be interpreted consistently with the reporting
requirements under the OSHAct is rejected.

6 In contrast, MSHA allows the reporting of estimated hours of work for
salaried employees totalling 9 1/2 hours per day at Consol's mines. Stips. 32
& 33.
~968
Finally, Consol argues that "a regulation cannot be applied in a manner
that fails to inform a reasonably prudent person of the conduct required."
Consol Br. 36-37, quoting Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152
(November 1989). Consol maintains that the Secretary's guidelines interpreting
Part 50 are internally inconsistent and have changed significantly
since the regulation was adopted. In fact, Consol had actual notice of the
Secretary's December 1986 interpretation of the regulation to the effect that
mine operators should "not include time spent on mine property outside of
regularly scheduled shifts, i.e., bathhouse, parking lot, etc." Gov. Exh. 1,
p. 15; Stip. 41. The revised guideline containing this specific language was
issued two and one half years before the contested citations were issued. We
conclude that Consol was given fair notice of the requirements of the
regulation.
Based on the above, we affirm the judge's finding that Consol violated
section 50.30-1(g)(3). Notwithstanding the preceding determinations, however,
we also agree with the judge that the incident rates calculated by MSHA are
flawed because the injury and accident information that mine operators are
required to submit does not correlate with the data that mine operators must
report for employee hours worked.(Footnote 7) See 12 FMSHRC 1144-46. As
stated above, the injury and accident information gathered by MSHA from
section 50.20 and the employee hours worked information gathered by MSHA from
section 50.30 are used by MSHA to calculate rates of injury occurrence
pursuant to section 50.1. Under section 50.1 incident rates are to be
calculated by dividing the number of accidents and injuries by the number of
employee exposure hours. The Secretary, however, calculates incident rates by
dividing the number of accidents and injuries during total exposure hours by
the number of employee hours worked. The mismatch of numerator and

Page 13

denominator yields distorted incident rates. The Secretary argues that, since
all mine operators are required to report only actual paid hours worked, any
skewing, if it occurs, would be similar across operators. Sec. Br. 21. This
assumption, however, is not correct. Employees at some mines may perform preand
post- shift tasks for varying periods of time before and after the start
of their paid shifts, and employees at other mines may work longer shifts and
perform such tasks during their paid shifts. The reported incident rates of
these operators may not be comparable.
Another source of lack of comparability in reported incident rates
across operators arises from inconsistent treatment of salaried employees.
MSHA admits that it allows Consol to include an additional 90 minutes of
exposure time for salaried employees, but has not disseminated its acceptance
of this allowance to other operators similarly situated. Oral Arg. Tr. 29-30.
This policy may seriously skew the data since counsel for Consol indicated
that at large mines as much as 30% of the work force may be categorized as
salaried employees. Oral Arg. Tr. 44-45.

7 The citations charged Consol with nonserious, non-S&S violations. In
upholding the citations, the judge concluded that the violations were
"nonserious and technical in nature" because, as applied by MSHA, the incident
rate formula produces flawed data. 12 FMSHRC at 1146. The Secretary did not
appeal this finding.
~969
Nevertheless, because section 50.30-1(g)(3) requires mine operators to
report to MSHA the number of employee hours worked as recorded in the
operator's payroll or other time records, we conclude, as did Judge Merlin,
that Consol violated the regulation. Prior to the Commission's decision in
Freeman United Coal Mining Co., 6 FMSHRC 1577 (July 1984), Consol reported as
hours worked the number of paid hours that miners worked as reflected in its
payroll records. Stip. 42. Consol was not free to reinterpret the reporting
regulation merely because it believed that the incident rates calculated by
MSHA were flawed, because of the Commission's decision in Freeman or because
of its belief that MSHA's use of the data is misguided. As noted by the
Secretary, Consol's method is also flawed in that it dilutes Consol's incident
rate as compared to other operators. Sec. Br. 19-21. If each operator could
report to MSHA whatever data it believed would lead to the most accurate
incident rate at its own mines, operator reports would not be comparable and
the incident rates calculated by the Secretary would be inaccurate. Finally,
it is not clear from the record in this case whether the flaw caused by MSHA's
use of mismatched data resulted in significantly skewed incident rates for
Consol because few injuries at Consol's mines occurred before or after the
miners' regular shifts. See Sec. Br. 20-21 n. 13.
We conclude that any flaws in MSHA's calculations of incident rates do
not excuse Consol's violation of the regulation. Incident rates provide a
general picture of the safety record of a mine operator. The assertion that
MSHA's method of calculating incident rates is less than perfect or that there
may be better methods does not excuse mine operators from complying with the
data submission requirements of Part 50. The Commission's task is not to
determine the best method of calculating incident rates, but to determine

Page 14

whether the Secretary's interpretation of the reporting regulation is
reasonable and whether the operator was given fair notice of its requirements.
See e.g., K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291-92 (1988); Lanham
Coal Co., 13 FMSHRC 1341, 1343-44 (September 1991).(Footnote 8)
D. Whether Consol was highly negligent
We conclude that substantial evidence supports the judge's finding that
Consol's "negligence was high." 12 FMSHRC at 1146. The express language of
section 50.30-1(g)(3) is ambiguous and, in general, the reporting requirements
of the regulation should be harmonized with the other sections in Part 50 to
effectuate the Mine Act's goal of promoting the safety and health of miners.
Cf. Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1414 (10th Cir.
1984)(citation omitted).

8 At the time of oral argument, the Secretary had issued an advance notice
of proposed rulemaking to amend her Part 50 regulations. 53 Fed. Reg. 45,878
(November 14, 1988). Consol moved the Commission, on May 8, 1992, to take
judicial notice of the Secretary's announcement that she had withdrawn Part 50
from her regulatory agenda. See 57 Fed. Reg. 16, 983 (April 27, 1992). The
Secretary has not filed an opposition to this motion. We hereby grant
Consol's motion. See Fed. R. App. P. 28(j). We find the Secretary's action
in removing Part 50 from her regulatory agenda disturbing in light of our
conclusions that injury incident rates are distorted and subject to
inconsistencies as between operators.
~970
1984) (citation omitted).
Nevertheless, as the judge concluded, "after the Freeman decision the
operator intentionally changed its reporting of hours worked under § 50.30-
1(g)(3)." 12 FMSHRC at 1146. As the judge explained:
Whatever difficulties may be presented by the
Secretary's interpretation of the Act and regulations,
no operator is free to take the law into its own hands
by deciding for itself what the law means and how it
can best be applied.
Id.
We conclude that the judge's decision is supported by substantial
evidence. Accordingly, we affirm his finding that Consol's negligence was
high.
III.
~971
Conclusion
For the foregoing reasons, we affirm the judge's finding that Consol
violated 30 C.F.R. § 50.30-1(g)(3) in each instance cited, and also affirm the
judge's finding of high negligence.
Ford B. Ford, Chairman
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
L. Clair Nelson, Commissioner
Commissioner Holen, concurring:
I fully agree with this decision. I add my concern that the goal of

Page 15

improving mine safety can be unnecessarily compromised by the use of
inaccurate data as a basis for allocating inspection resources, calculating
national mine safety statistics, and making regulatory policy.
Arlene Holen, Commissioner