Secretary of Labor, Mine Safety and Health Administration v. Western Fuels-Utah, Inc., and Federal Mine Safety and Health Review Commission

900 F.2d 318, 283 U.S. App. D.C. 334, 1990 CCH OSHD 28,881, 1990 U.S. App. LEXIS 5152, 1990 WL 38603

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 6, 1990
• Docket: 89-1258
• Status: Published

Opinions

Opinion for the Court filed by Chief Judge WALD.

Dissenting opinion filed by Circuit Judge HARRY T. EDWARDS.

WALD, Chief Judge:

The Secretary of Labor, Mine Safety and Health Administration ("Secretary”) petitions for review of a Federal Mine Safety and Health Review Commission (“FMSHRC” or “Commission”) decision vacating an order and citation issued to Western Fuels-Utah, Inc. (“Western Fuels”) for failure to task train one of its foremen in the operation of a roof bolting machine. We grant the petition and reverse the Commission’s decision.

I. BACKGROUND

A. Statute and Regulations

Section 115(a) of the Federal Mine Safety and Health Act of 1977 (“Mine Act” or “Act”), 30 U.S.C. § 825(a), provides a comprehensive scheme for the training of miners. In general, § 115(a) requires training for new miners, annual refresher training and task training. With regard to task training, § 115(a) provides in relevant part:

(4) any miner who is reassigned to a new task in which he has had no previous work experience shall receive training in accordance with a training plan approved by the Secretary under this subsection in the safety and health aspects specific to that task prior to performing that task.

The Secretary of Labor’s regulations implementing § 115(a) are set forth at 30 C.F.R. Part 48. With regard to task training for miners working in underground coal mines, 30 C.F.R. § 48.7(a) states in pertinent part:

Miners assigned to new work tasks as mobile equipment operators, drilling machine operators, haulage and conveyor systems operators, roof and ground control machine operators, and those in blasting operations shall not perform new work tasks in these categories until training prescribed in this paragraph and paragraph (b) of this section has been completed.

Task training is required under § 48.7(a) of any miner who has not been trained on the task in question within the preceding 12 months.

The training requirements of § 48.7(a), are applicable to “miners” working in the underground mines. 30 C.F.R. § 48.1. 30 C.F.R. § 48.2(a)(1) provides in relevant part:

“Miner” means, for purposes of §§ 48.3 through 48.10 of this Subpart A [Training and Retraining of Underground Miners], any person working in an underground mine and who is engaged in the extraction and production process, or who is regularly exposed to mine hazards, or who is a maintenance or service worker contracted by the operator to work at the mine for frequent or extended periods. This definition shall include the operator if the operator works underground on a continuing, even if irregular basis_ This definition does not include:

(ii) Supervisory personnel subject to MSHA approved State certification requirements.

B. Facts

While working as a section foreman at Western Fuels’ Deserado Mine, an underground coal mine in Colorado, Carson Julius ordered one of two workmen operating a two-man roof bolting machine to go to lunch. Julius took over for the departing workman. While Julius and the other worker, Austin Mullens, were operating the roof bolting machine, an accident occurred and Austin Mullens was killed.

After investigating the accident, the Mine Safety and Health Administration (“MSHA”) determined that Julius had not been task trained to operate the roof bolting machine during the 12 months preceding the accident. Consequently, the MSHA inspector issued an order pursuant to §§ 104(a) and 104(g)(1) of the Act alleging a violation of 30 C.F.R. § 48.7. Western Fuels abated the order by task training Julius to operate a roof bolting machine.

C. Procedural History

Western Fuels contested the order and citation before the FMSHRC. The Secretary filed a petition with the FMSHRC for a civil penalty for the violation set forth in the order and citation. The Administrative Law Judge (“AU”) found for the Secretary, holding that the “supervisory personnel” exception to task training of 30 C.F.R. § 48.2(a)(l)(ii) does not apply to a person who may otherwise be assigned to supervisory activities when that person is engaged in the operation of mine equipment machinery, such as a roof bolting machine.

The Commission reversed the AU, stating that the AU’s decision could not be squared with what it viewed as “the plain, unambiguous language of section 48.-2(a)(l)(ii)_ The exclusion of ‘supervisory personnel’ from the definition of ‘miner’ in section 48.2(a)(ii) has a plain meaning apparent from any reasonable reading of the regulation. The term ‘supervisory personnel’ means individuals who are supervisors.” Thus, the Commission held that such supervisors are exempted from the task training requirements regardless of whether they are acting in a supervisory capacity or are merely performing operations in lieu of ordinary miners.

II. Analysis

The Secretary argues that the Commission erred in holding that the meaning of the supervisory personnel exception of § 48.2(a)(ii) is plain. She contends that the scope of the regulatory exemption is not clear from the regulatory language and that since her interpretation is reasonable we must defer to it. We agree.

As the Tenth Circuit explained in Emery Mining Co. v. Secretary of Labor, Mine Safety and Health Administration, 744 F.2d 1411, 1414 (10th Cir.1984), “a regulation must be interpreted so as to harmonize with and further and not to conflict with the objective of the statute it implements. [Courts] must construe [regulations] in light of the statute[s they] implement[], keeping in mind that where there is an interpretation of an ambiguous regulation which is reasonable and consistent with the statute, that interpretation is to be preferred.” (Citations omitted.) The Secretary’s interpretation of § 48.2’s “supervisory personnel” exception as applying only to supervisors when they are functioning as such and not when they are working as miners harmonizes with the Mine Act’s objective as it pertains to the training of miners.

Section 115(a) of the Mine Act is intended to insure that miners will be effectively trained in matters affecting their health and safety, with the ultimate goal of reducing the frequency and severity of injuries in mines. 43 Fed.Reg. 47,454 (October 13, 1978). Indeed, Congress considered training to be of such great importance that it specifically empowered inspectors to withdraw untrained miners from the mines and to prohibit their reentry until they received proper training. 30 U.S.C. § 814(g).

Moreover, the affidavit of John C. English, former Director of MSHA’s Office of Education and Policy Development, attests to the fact that supervisors untrained as miners but doing miners’ work are responsible for a majority of mine fatalities. According to English, data analysis shows that the average fatality rate for supervisors exceeded that for miners in general by 0.13 to 0.09, respectively, per 200,000 employee hours worked from 1972 to 1977 and 0.10 to 0.06 from 1978 to 1980. Additionally, of the coal mine supervisory fatalities from 1973 through 1983, about 59% of them occurred while the victim was performing nonsupervisory tasks. Appendix (“App.”) at 37. English concludes by noting that “[instances where ‘supervisors’ spend a significant amount of time mining rather than supervising continue to come to MSHA’s attention.... In the first half of 1986, supervisors were in the most hazardous mining occupation group, accounting for more than 25% of the total fatalities; once again of the supervisory fatals, the majority had been performing nonsupervi-sory tasks.” App. at 41. These statistics make clear that the Secretary’s interpretation of § 48.2’s “supervisory personnel” exemption from task training harmonizes with the objective of § 115 of the Act; Western Fuels’ interpretation does not.¹

But even if Western Fuels’ interpretation were equally consistent with the statutory objectives of § 115, we would still be compelled to defer to the Secretary. Indeed while Western Fuels’ facial reading of § 48.2’s “supervisory personnel” exemption is reasonable, so is the Secretary’s, and we have explained that “when the Secretary and the Commission disagree on the interpretation of ambiguous provisions of the Mine Act, and both present plausible readings of the legislative text, this court owes deference to the Secretary’s interpretation.” Secretary of Labor, Mine Safety and Health Administration, on behalf of Bushnell v. Cannelton, 867 F.2d 1432, 1433 (D.C.Cir.1989). And we added that “[t]he Secretary is emphatically due this respect when she interprets her own regulations.” Id. at 1435. Moreover, it is well-settled that an agency’s interpretation of its own regulation is “of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945). See also United States v. Larionoff 431 U.S. 864, 872-73, 97 S.Ct. 2150, 2155-56, 53 L.Ed.2d 48 (1977) (since agency’s interpretation is not plainly inconsistent with the wording of the regulation it is due deference even though the regulation “contains a number of ambiguities”); Udall v. Tallman, 380 U.S. 1, 4, 85 S.Ct. 792, 795, 13 L.Ed.2d 616 (1965) (“The Secretary’s interpretation may not be the only one permitted by the language of the orders, but it is quite clearly a reasonable interpretation; courts must therefore respect it.”); Hispanic Information & Telecommunications Network v. FCC, 865 F.2d 1289, 1296 (D.C.Cir.1989) (“An agency’s interpretation of its own regulations will be accepted unless it is plainly wrong.”); FLRA v. U.S. Dept. of Treasury, 884 F.2d 1446, 1454 (D.C.Cir.1989). This doctrine is most compelling when the agency’s “construction ... rests upon matters peculiarly within the administrator’s field of expertise.” Southern Mutual Help Ass’n, Inc. v. Califano, 574 F.2d 518, 526 (D.C.Cir.1977). See also Jicarilla Apache Tribe v. FERC, 578 F.2d 289, 292-93 (10th Cir.1978).

The Secretary’s interpretation of § 48.2’s exception from task training for “supervisory personnel” is by no means “plainly inconsistent” with the wording of § 48.2. While other regulations under the Act refer to supervisors,² § 48.2 refers to supervisory personnel. In common usage, “supervisory” is defined as “of or relating to supervision,” which is defined as “the act of supervising.” Webster’s Third New International Dictionary at 2296 (1971). It follows that a person is “supervisory” so long as that person is in “the act of supervising.” Once a person diverts from supervision to operate mine machinery or to do some other nonsupervisory mining task, that person is not engaged in the task of supervising and therefore is not “supervisory.” The use of the adjective form “supervisory” rather than the noun “supervisor” emphasizes that it is the nature of the person’s actions that is important and not the person’s title or position.

The importance of the distinction in the Mine Act’s regulatory scheme between one’s job title and the actual task one is performing is further borne out by the language used in § 48.2's definition of “miner.” Focusing on the activities to be performed and the hazards encountered rather than on the job title held, § 48.2 defines “miner” as any person “who is engaged in the extraction and production process, or who is regularly exposed to mine hazards.” The term even includes the mine operator “if the mine operator works underground on a continuing, even if irregular, basis.” In the same vein, § 48.7(a) is written to enumerate which activities, not which individuals, require task training:

Miners assigned to new work tasks as mobile equipment operators, drilling machine operators, haulage and conveyor systems operators, roof and ground control machine operators, and those in blasting operations shall not perform new work tasks in these categories until training prescribed in this paragraph and paragraph (b) of this section has been completed.

(Emphasis added.)

Finally, the Secretary has consistently interpreted § 48.2’s “supervisory personnel” exception as encompassing this function-title distinction, and consistency in an agency’s interpretation of its own facially ambiguous regulations heavily favors judicial deference to that interpretation. See Bowles, 325 U.S. at 417-18, 65 S.Ct. at 1218-19 (Office of Price Regulation’s interpretation of ambiguous regulatory provision supported by the “countless explanations and interpretations given to inquirers affected by this type of maximum price regulation”); Larionoff 431 U.S. 872 n. 11, 97 S.Ct. at 2156 n. 11 (Navy’s interpretation of regulation regarding payment of bonuses for re-enlistment supported by the fact that it had “apparently been the practice” of the Navy to apply the regulation according to the interpretation offered by the Navy); Chemical Waste Management v. EPA, 869 F.2d 1526, 1540 (D.C.Cir.1989) (EPA’s interpretation of its own regulation “though not previously published in the Federal Register, has frequently been applied to individual cases during the past decade.”).

Since the passage of § 48.2, the Secretary has published and disseminated widely three policy memoranda, each of which explains that the regulatory exemption applies only to supervisors when they are functioning in a supervisory capacity, not when they are carrying out the tasks of a miner.³ The first memorandum was issued in question/answer format in 1980. In response to a question about the scope of the “supervisory personnel” exception, the memorandum clearly says that supervisors

are only excluded from the training requirements under Part 48 when they are performing work normally performed by a supervisor_ [A] state certified supervisor performing the work of a miner would be required to be trained under Part 48. When such a state certified supervisor is performing this work, he would only be required to take Part 48 “Task training” in order to be considered trained as a miner under Part 48.

App. at 54. The second memorandum— MSHA Policy Memorandum No. 84-2 EPD is entitled “Training Requirements of 30 C.F.R. Part 48 for Mine Supervisors Who Perform Non-Supervisory Work.” Issued in 1984, it similarly states that the “supervisory personnel” exception “applies only to the extent that supervisory work is being performed.” App. at 55. This memorandum was distributed to all mine operators and bears the express admonition that it “should be brought to the attention of persons responsible for mine health and safety training.” Id. Finally, in 1985, the Secretary published the “MSHA Administrative Manual 30 C.F.R. Part 48 — Training and Retraining of Miners.” In explaining the scope of the “supervisory personnel” exception, the manual specifically mentions as an example that “if a supervisor operates mining equipment, or performs extraction, production and maintenance work, that supervisor is a ‘miner’ when performing this work and must have been given task training under Section 48.7.” App. at 60.⁴ (Emphasis added.) Thus, the Secretary has consistently and publicly announced her interpretation of the regulation from its very inception.

III. CONCLUSION

The Secretary’s interpretation of § 48.2’s exception of “supervisory personnel” from task training harmonizes with the objectives of the Mine Act and is consistent with both the wording of the regulation and prior interpretations of the Secretary. Deference to the Secretary’s interpretation is therefore required as a matter of law. Consequently, we grant the petition for review, reverse the Commission’s order and remand for proceedings consistent with this opinion.

So ordered.

1 . English noted that of all mining jobs, roof bolting is the most dangerous. Affidavit at 7.

Moreover, English explained that the MSHA-approved state certificate training programs for supervisors are of a very general nature, covering functions associated with supervision and not covering competency in actually operating mobile mine equipment or machinery.

2 . Sections 48.5(1) and 48.6(3) (authority and responsibility of supervisors and miners in training programs).

3 . Beyond arguing from the Commission’s invocation of the regulation’s alleged plain meaning, Western Fuels’ only support for its interpretation of the scope of § 48.2’s "supervisory personnel" exemption is the reference in the Commission’s decision to the preamble to the final rule. That preamble reads as follows:

n. Training of Supervisors. The final rule retains the exclusion from these training requirements of supervisory personnel subject to any approved State certification program. ... MSHA will approve or evaluate the State certification programs to assure that such programs provide sufficient training as an alternative to the training requirements of subparts A and B....

(Emphasis added.) While the preamble could be read to indicate that state certifications are in lieu of § 48.7’s task training requirements, it is equally plausible to read the same language as supporting the Secretary’s construction; as used in the preamble “supervisory personnel” means persons with the title of supervisor who are engaged in supervisory activity.

4 . Like the Commission, Judge Edwards believes that the plain meaning of § 48.2’s "supervisory personnel" exception is clear and these policy memoranda contradict that clear interpretation to the detriment of Western Fuels. Judge Edwards therefore contends that since the Secretary has not published any of these memoranda in the Federal Register, § 552(1)(D) of the Administrative Procedure Act bars her from invoking them. Section 552(1)(D) provides that

(1) Each agency shall separately state and concurrently publish in the Federal Register for the guidance of the public—

(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....

Because, however, we find the meaning of the critical words of § 48.2 ambiguous, and the function of the policy memoranda to be one of clarifying and not contradicting the regulation itself, we do not think that § 552 in any way bars consideration of the memoranda in this case. See Bowles, Larinoff and Chemical Waste, supra.