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[Federal Register: February 20, 1998 (Volume 63, Number 34); Page 8692-8693]
[Notices]

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DEPARTMENT OF LABOR
Mine Safety and Health Administration

The ``Significant and Substantial'' Phrase in Sections 104(d) and (e) of the Federal Mine Safety and Health Act of 1977; Interpretative Bulletin

AGENCY: Mine Safety and Health Administration (MSHA), Labor.

ACTION: Notice, request for comments.

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SUMMARY: MSHA is announcing a public comment period concerning the Interpretative Bulletin providing notice of the Secretary's interpretation of the statutory phrase ``significant and substantial'' appearing in sections 104(d) and (e) of the Federal Mine Safety and Health Act of 1977 ( Mine Act). The Interpretative Bulletin was published in the Federal Register on February 5, 1998 (63 FR 6012). The Agency solicits public comment concerning the implementation and impact of the Secretary's interpretation of the ``significant and substantial'' phrase.

DATES: Comments must be submitted on or before April 21, 1998.

ADDRESSES: A copy of the Interpretative Bulletin may be obtained from the Office of Standards, Regulations, and Variances, Mine Safety and Health Administration , 4015 Wilson Boulevard, Room 627, Arlington, Virginia 22203.

Comments on the Interpretative Bulletin may be transmitted by electronic mail, fax, or mail, or dropped off in person at any MSHA office. Comments by electronic mail must be clearly identified as such and sent to this e-mail address: zzMSHA-Comments@dol.gov. Comments by fax must be clearly identified as such and sent to: MSHA, Office of Standards, Regulations, and Variances, 703-235-5551. Send mail comments to: MSHA, Office of Standards, Regulations, and Variances, Room 631, 4015 Wilson Boulevard, Arlington, VA 22203-1984.

FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office of Standards, Regulations, and Variances, Mine Safety and Health Administration , 703-235-1910.

SUPPLEMENTARY INFORMATION: The purpose of the Interpretative Bulletin is to provide notice of the Secretary's interpretation of the statutory phrase ``significant and substantial'' appearing in sections 104(d) and (e) of the Mine Act. The Secretary's Interpretative Bulletin noted that ``a violation must be found to be `significant and substantial' as long as it is shown to present a hazard that is more than remote or speculative.'' The Interpretative Bulletin

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sets out a statement of purpose, and the Secretary's disagreement with the Federal Mine Safety and Health Review Commission's interpretation of the phrase ``significant and substantial.'' The document provides a basis for the Secretary's interpretation based on the plain language of the Mine Act and its legislative history, and the underlying purpose and enforcement scheme of the Mine Act.

The ``significant and substantial'' designation is an important part of the Mine Act's scheme for promoting miner safety and health because a ``significant and substantial'' finding forms the basis for possible withdrawal of miners under Section 104(d) of the Mine Act when combined with an ``unwarrantable failure'' finding and the basis for a possible withdrawal of miners under Section 104(e) when a pattern of ``significant and substantial'' violations is established. The Secretary's decision to publish the Interpretative Bulletin was a result of concern that, in certain cases, violations that present real hazards to miner safety and health are not being determined to be ``significant and substantial.'' In Hobet, miners were exposed to dust being generated by a high wall drill at a mine which in the past, had been placed on a reduced dust standard due to high levels of silica. Studies by the National Institute for Occupational Safety and Health and x-ray surveillance efforts at surface coal mines have demonstrated that such exposures result in serious and sometimes fatal lung disease. In another instance, it was determined that the failure to follow the mine evacuation plan and withdraw miners outby during a belt fire was not ``significant and substantial'' (S&S) because the fire was quickly extinguished. In a recently decided case, the administrative law judge found that stuck rollers on a conveyor did not constitute an S&S violation, even though there were accumulations of coal on rollers and belt structures, rollers had been worn flat by rubbing, and rollers were warm to the touch. However, because the Secretary did not establish the exact amount of material in the accumulations the violation was found to be non S&S. In the Secretary's view, such violations clearly involve hazards that demand serious attention by mine operators because they present real threats to miner safety and health . Challenges to the S&S determinations made by inspectors on citations such as these have led to the Secretary's conclusion that the Commission's interpretation creates uncertainty about hazards to miners' safety and health and, more importantly, misleads miners and mine operators to underestimate the risk of injury, illness or death.

As the Secretary indicated in the Interpretative Bulletin, the Secretary's interpretation is that a violation is ``significant and substantial'' if it presents a hazard that is more than remote or speculative in nature--that is, if it presents a hazard that has a realistic possibility of occurring. The Secretary believes that applying the ``significant and substantial'' designation to such violations will result in a realistic application of the ``significant and substantial'' clause and will serve to focus enforcement efforts on those violations that pose a real threat to miner safety and health . The Secretary's interpretation does not treat as ``significant and substantial'' all violations that are non-technical in nature.

MSHA believes that the Interpretative Bulletin will have a consequential impact on the mining community. MSHA is interested in receiving comments from the mining public on the implementation, application, and effect of the Secretary's interpretation on the mining public. MSHA is especially interested in comments from miners, mine operators, and other mine industry groups that may be affected by the Secretary's interpretation. The Agency's solicitation of such public comment does not indicate that the Secretary intends to or is required to engage in notice-and-comment rulemaking with respect to her interpretation of the ``significant and substantial'' phrase.

Dated: February 17, 1998.
J. Davitt McAteer,
Assistant Secretary for Mine Safety and Health .
[FR Doc. 98-4451 Filed 2-19-98; 8:45 am]
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