[Federal Register Volume 63, Number 34 (Friday, February 20, 1998)]
[Notices]
[Pages 8692-8693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4451]


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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: [email protected]. 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

[[Page 8693]]

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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