[Federal Register: November 25, 2009 (Volume 74, Number 226)]
[Rules and Regulations]
DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 7 and 75
Refuge Alternatives for Underground Coal Mines
AGENCY: Mine Safety and Health Administration (MSHA), Labor.
ACTION: Final rule; correction.
SUMMARY: This rule informs the mining community that MSHA rescinds the
Agency's intent stated in the preamble to the final rule on Refuge
Alternatives for Underground Coal Mines, concerning preemption of
private tort litigation with respect to the Agency's approval of
specifications for a refuge alternative.
DATES: Effective Date: November 25, 2009.
FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office
of Standards, Regulations, and Variances, MSHA, 1100 Wilson Boulevard,
Room 2350, Arlington, Virginia 22209-3939. Ms. Silvey can be reached at
202-693-9440 (voice), 202-693-9441 (facsimile), or
email@example.com (Internet e-mail).
SUPPLEMENTARY INFORMATION: On December 31, 2008, MSHA published a final
rule on Refuge Alternatives for Underground Coal Mines. (73 FR 80656).
The preamble includes a discussion on preemption, and states that ``it
is MSHA's intent that its approval of specifications for a refuge
alternative preempts private tort litigation questioning the propriety
of those specifications.'' (73 FR 80658).
On May 20, 2009, the President issued a Memorandum for the Heads of
Executive Departments and Agencies on Preemption. The purpose of the
Memorandum is to state the general policy of the Administration that
preemption of State law by executive departments and agencies should be
undertaken only with full consideration of the legitimate prerogatives
of the States and with a sufficient legal basis for preemption. The
Memorandum directs executive departments and agencies to ``review
regulations issued within the past 10 years that contain statements in
regulatory preambles or codified provisions intended by the department
or agency to preempt State law, in order to decide whether such
statements or provisions are justified under applicable legal
principles governing preemption.'' In addition, the memorandum states
that ``where the head of a department or agency determines that a
regulatory statement of preemption or codified regulatory provision
cannot be so justified, the head of that department or agency should
initiate appropriate action, which may include amendment of the
Section 506(b) of the Federal Mine Safety and Health Act of 1977
(Mine Act), concerning ``Effect on State Laws,'' specifically addresses
preemption of state law as follows:
The provisions of any State law or regulation in effect upon the
operative date of this Act, or which may become effective
thereafter, which provide for more stringent health and safety
standards applicable to coal or other mines than do the provisions
of this Act or any order issued or any mandatory health or safety
standard shall not thereby be construed or held to be in conflict
with this Act. 30 U.S.C. 955.
In addition, the House Report to the Mine Act, states that
``Federal law would supersede any State law in conflict with it,'' but
that ``State laws providing more stringent standards than exist under
the Federal law, however, would not be held in conflict with the [Mine]
act.'' H. Rep. No. 95-312, 95th Cong., 1st Sess., at 55 (1977).
In accordance with the Presidential Memorandum on Preemption, MSHA
has reviewed the Agency's standards and regulations issued within the
past 10 years. MSHA's review found that a statement in the preamble to
the Refuge Alternatives final rule is the only rule issued in the past
10 years to contain a preemption statement.
MSHA has determined that the Mine Act does not show any basis, or
Congressional intent, for inferring any attempt to preempt state tort
law regarding MSHA's approval specifications for refuge alternatives.
As stated earlier, the Mine Act provides, for example, that State laws
or regulations that provide more stringent requirements than those
imposed under the Mine Act, are not construed or held to be in conflict
with the Mine Act. MSHA's determination to rescind the preemption
statement in the preamble to the Refuge Alternatives rule is consistent
with the intent of the Mine Act and is consistent with the Presidential
Memorandum. The preemption statement in the preamble was, at best,
interpretive guidance purporting to interpret statutory language in the
Mine Act, which was included in the preamble of the final rule without
seeking prior public comment. It did not create any new law or
substantive rule, but simply stated what the agency thought the statute
meant. Further, this interpretation was published only recently, making
it unlikely that any member of MSHA's regulated community has relied to
their detriment on the interpretation. Under these circumstances,
notice and comment also are not required in withdrawing this
interpretation. See Warshauer v. Solis, 577 F.3d 1330 (11th Cir. 2009);
MetWest, Inc. v. Sec'y of Labor, 560 F.3d 506, 509-511 (DC Cir. 2009).
Accordingly, MSHA rescinds the last paragraph of the section-by-
section discussion of ``Section 7.501 Purpose and Scope,'' starting on
line 51 of the center column and ending on line 24 of the third column,
73 FR 80658, for the reason that this statement is not justified under
the Mine Act principles governing preemption, and there was no intent
by Congress, under the Mine Act, to supersede state action in this
Dated: November 19, 2009.
Joseph A. Main,
Assistant Secretary for Mine Safety and Health.
[FR Doc. E9-28214 Filed 11-24-09; 8:45 am]
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