[Federal Register Volume 71, Number 131 (Monday, July 10, 2006)]
[Notices]
[Pages 38902-38905]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10666]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration


Section 110(c) of the Federal Mine Safety and Health Act of 1977; 
Interpretation

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

ACTION: Interpretive rule.

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SUMMARY: The Interpretive Bulletin reproduced below sets forth a 
statement of the Secretary of Labor's interpretation of Section 110(c) 
of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 
820(c), as it relates to agents of Limited Liability Companies (LLCs). 
The Interpretive Bulletin is considered an interpretive rule and 
provides an explanation of the Secretary's interpretation of Section 
110(c) and the rationale supporting that interpretation. For the 
reasons set forth below, the Secretary's interpretation is that Section 
110(c) of the Mine Act is applicable to agents of LLCs.

[[Page 38903]]

    The effect of the Secretary's interpretation is that agents of LLCs 
may be held personally liable under Section 110(c) of the Mine Act if 
they knowingly authorize, order, or carry out a violation of any 
mandatory health or safety standard under the Act or a violation of or 
failure or refusal to comply with any order issued under the Act or any 
order incorporated in a final decision issued under certain provisions 
of the Act.

DATES: The Interpretive Bulletin takes effect on July 10, 2006.

FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Acting Director, 
Office of Standards, Regulations, and Variances, MSHA, 1100 Wilson 
Boulevard, Room 2350, Arlington, VA 22209-3939. Ms. Silvey can be 
reached at [email protected]. (Internet E-mail), (202) 693-9440 
(voice), or (202) 693-9441 (facsimile).
    To subscribe to the MSHA listserve and receive automatic 
notification of MSHA Federal Register publications, visit the site at 
http://www.msha.gov/subscriptions/subscribe.aspx.

SUPPLEMENTARY INFORMATION

Discussion of the Interpretive Bulletin and the Comments Received

    On May 9, 2006, the Secretary of Labor published an Interpretive 
Bulletin setting forth a statement of her interpretation of Section 
110(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 
U.S.C. 820(c), as it relates to agents of Limited Liability Companies 
(LLCs). 71 FR 26982 (May 9, 2006). The Interpretive Bulletin is 
reproduced below, with procedural details that are no longer applicable 
deleted. As explained in the Interpretive Bulletin, the Secretary's 
interpretation is that Section 110(c) is applicable to agents of LLCs.
    As stated in the Interpretive Bulletin, the Secretary believes that 
the position set forth in the Interpretive Bulletin represents an 
``interpretive rule'' as that term is used in the Administrative 
Procedure Act, and is therefore not required to go through notice-and-
comment rulemaking. See 71 FR at 26982 (citing 5 U.S.C. 553(b)(3)(A) 
and AMC v. MSHA, 995 F.2d 1106, 1108-13 (D.C. Cir. 1993)). See also 
Central Texas Telephone Cooperative, Inc. v. FCC, 402 F.3d 205, 210-14 
(D.C. Cir. 2005); Orengo Caraballo v. Reich, 11 F.3d 186, 194-96 (D.C. 
Cir. 1993): United Technologies Corp. v. EPA, 821 F.2d 714, 718-20 
(D.C. Cir. 1987). Exercising her discretion to do so, however, the 
Secretary solicited comments on the Interpretive Bulletin.
    The Secretary received comments from three commenters. The 
Secretary has carefully reviewed the comments, and has determined that 
they identify no considerations that militate against the conclusion 
that the Secretary's interpretation of Section 110(c) is both 
permissible and reasonable. Accordingly, the Interpretive Bulletin 
takes effect, as scheduled, on July 10, 2006.
    All three of the commenters suggested that the Secretary's 
interpretation of Section 110(c) is inconsistent with the decisions of 
the Federal Mine Safety and Health Review Commission and the District 
of Columbia Circuit Court of Appeals in Paul Shirel and Donald Guess, 
employed by Pyro Mining Co. (Shirel and Guess), 15 FMSHRC 2440 (1993), 
aff'd, 52 F.3d 1123 (D.C. Cir. 1995) (unpublished). The Secretary 
addressed the holding in Shirel and Guess in the Interpretive Bulletin. 
As the Secretary explained, the holding in Shirel and Guess that 
Section 110(c) is inapplicable to agents of partnerships has no bearing 
on the question of whether Section 110(c) is applicable to agents of 
LLCs because partnerships, unlike LLCs, existed and were a well-known 
form of business organization when Congress enacted the Mine Act. See 
71 Fed. Reg. at 26984 n. 2.
    One of the commenters also suggested that the Secretary's 
interpretation of Section 110(c) is inconsistent with the fact that 
``Section 110 of the [Mine] Act was amended as recently as 1990, by 
which point LLCs were a relatively common form of legal entity, and yet 
Congress did not see fit at that time to expand the wording of the 
statute.'' The Secretary believes that the action Congress took with 
respect to Section 110 in 1990 has no bearing on the question of 
whether Section 110(c) is applicable to agents of LLCs. Congressional 
reenactment of a statutory provision without change may sometimes 
indicate approval of an existing interpretation of that provision. See 
Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 
511 U.S. 164, 185 (1994); Lorillard v. Pons, 434 U.S. 575, 580-85 
(1978). Congressional reenactment indicates such approval, however, 
only if the interpretation took the form of a consistent judicial 
interpretation or an authoritative administrative interpretation, and 
only if there is evidence that Congress was actually aware of that 
interpretation. See, e.g., Rabin v. Wilson-Coker, 362 F.3d 190, 197 (2d 
Cir. 2004); In re Coastal Group, Inc., 13 F.3d 81, 84 (3d Cir. 1994); 
AFL-CIO v. Brock, 835 F.2d 912, 915-16 (D.C. Cir. 1987). Indeed, the 
District of Columbia Circuit Court of Appeals has held that there must 
be evidence both that Congress was actually aware of the interpretation 
and that Congress affirmatively indicated approval of the 
interpretation. General American Transportation Corp. v. ICC, 872 F.2d 
1048, 1053 (D.C. Cir. 1989), cert. denied, 493 U.S. 1069 (1990); AFL-
CIO, 835 F.2d at 915-16.
    In 1990, Congress merely amended Sections 110(a) and 110(b) of the 
Mine Act to increase the amount of the maximum civil penalties 
specified in those provisions. Public Law 101-508, Title III, sections 
3102(1) and 3102(2), Nov. 5, 1990, 104 Stat. 1388. There was no 
judicial or administrative interpretation in existence in 1990 to the 
effect that Section 110(c) is inapplicable to agents of LLCs, and there 
is no evidence that Congress in any way considered the question of 
whether Section 110(c) is applicable to agents of LLCs.\1\ Indeed, 
Congress' action in 1990 cannot meaningfully be said to have been a 
reenactment of Section 110(c) at all. Congress' amendment of Sections 
110(a) and 110(b) had nothing to do with Section 110(c) or any other 
provision of the Mine Act, and was instead part of an omnibus budget 
reconciliation act that adjusted the monetary amounts specified in 
numerous statutes throughout the federal government.
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    \1\ The analysis set forth above also applies to the recently 
enacted Miner Improvement and New Emergency Response Act of 2006 
(MINER Act), Public Law 109-236, June 15, 2006, 120 Stat. 493.
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    For the reasons set forth in the Interpretive Bulletin and above, 
the Secretary believes that it is both permissible and reasonable to 
interpret Section 110(c) as being applicable to agents of LLCs.

The Interpretive Bulletin

Introductory Statement

    The Secretary of Labor is responsible for interpreting and applying 
statutes she is authorized to administer. More specifically, Congress 
delegated to the Secretary, acting through MSHA, the authority to 
administer the Mine Act. See Secretary of Labor v. Excel Mining, LLC, 
334 F.3d 1, 5-7 (D.C. Cir. 2003); Secretary of Labor on behalf of 
Wamsley v. Mutual Mining, Inc., 80 F.3d 110, 113-14 (4th Cir. 1996). 
The interpretation and application of statutory terms to particular 
factual circumstances is an ongoing process. Publication of all 
interpretive positions taken by the Secretary is impossible; at times, 
however, the Secretary has found it useful as a means of notifying the 
public in general, and interested segments of the public in particular, 
to publish an Interpretive Bulletin or other

[[Page 38904]]

documents setting forth the Secretary's interpretive positions with 
respect to particular provisions of statutes she administers.
    The question has arisen whether Section 110(c) of the Mine Act is 
applicable to agents of LLCs. The LLC is a relatively new business 
entity which combines the limited liability provided by a corporation 
with the ``pass-through'' tax treatment accorded to a partnership. LLCs 
are like corporations in that they shield individuals from personal 
liability; for that reason, they raise concerns similar to those which 
led Congress to enact Section 110(c).
    The status of LLCs under Section 110(c) has become a significant 
issue under the Mine Act because, in recent years, the number of mine 
operators organized as LLCs has steadily increased. According to MSHA 
records, 782 of the Nation's 7,287 active mine operators--approximately 
10 percent--now identify themselves as LLCs. The actual number may be 
significantly greater because MSHA's mine identification forms do not 
list ``LLC'' as an option and many LLCs may not identify themselves as 
LLCs. A number of the Nation's large operators are LLCs.
    The purpose of this Interpretive Bulletin is to make the public 
aware of the Secretary's interpretation of the applicability of Section 
110(c) to agents of LLCs--an interpretation the Secretary will apply in 
administering and enforcing the Mine Act.

Limited Liability Companies

    The LLC is a hybrid business entity first recognized in 1977 by the 
State of Wyoming. LLCs did not attain any significant popularity until 
1988, however, when the Internal Revenue Service announced that LLCs 
could be taxed as partnerships despite their corporation-like liability 
shield. When the IRS announced in 1997 that LLCs could elect pass-
through taxation without regard to the number of corporation-like 
characteristics they possessed, the number of LLCs grew dramatically.

Text and History of Section 110(c)

    Section 110(c) of the Mine Act states as follows:

    Whenever a corporate operator violates a mandatory health or 
safety standard or knowingly violates or fails or refuses to comply 
with any order issued under this Act or any order incorporated in a 
final decision under this Act, except an order incorporated in a 
decision issued under Subsection (a) or Section 105(c), any 
director, officer, or agent of such corporation who knowingly 
authorized, ordered, or carried out such violation, failure, or 
refusal shall be subject to the same civil penalties, fines, and 
imprisonment that may be imposed upon a person under subsections (a) 
and (d).

30 U.S.C. 820(c) (emphases added). Section 110(c) of the Mine Act was 
carried over essentially unchanged from the Federal Coal Mine Health 
and Safety Act of 1969 (Coal Act). See 30 U.S.C. 819(c) (1969). The 
legislative history of the Mine Act, quoting from the legislative 
history of the Coal Act, stated:

    Civil penalties are not a part of the enforcement scheme of the 
Metal Act, but they have been part of the enforcement of the Coal 
Act since its enactment in 1969. The purpose of such civil 
penalties, of course, is not to raise revenues for the federal 
treasury, but rather, is a recognition that: `[s]ince the basic 
business judgments which dictate the method of operation of a coal 
mine are made directly or indirectly by persons at various levels of 
corporate structure, [the provision for assessment of civil 
penalties is] necessary to place the responsibility for compliance 
with the Act and the regulations, as well as the liability for 
violations on those who control or supervise the operation of coal 
mines as well as on those who operate them.' In short, the purpose 
of a civil penalty is to induce those officials responsible for the 
operation of a mine to comply with the Act and its standards.

S. Rep. 95-181, Federal Mine Safety and Health Act of 1977, 95th Cong. 
1st Session, at 40 (quoting S. Rep. 91-411, Federal Coal Mine Health 
and Safety Act of 1969, 91st Cong. 1st Session, at 39).

Purpose of Section 110(c)

    When a ``corporate operator'' violates a mandatory health or safety 
standard under the Mine Act, Section 110(c) of the Act imposes personal 
liability on ``any director, officer, or agent'' of the corporation who 
knowingly authorized, ordered, or carried out the violation. Because a 
corporation generally serves as a shield against personal liability, 
corporate directors, officers, and agents generally are not personally 
liable for legal violations committed by the corporation.\2\ Congress' 
enactment of Section 110(c) reflected its concern that corporate mine 
operators would have a reduced incentive to comply with Mine Act 
standards because a corporation would shield the individuals who 
control and supervise the mine--the corporation's directors, officers, 
and agents--from personal liability. Section 110(c) imposes liability 
for Mine Act violations directly on the individuals responsible for the 
violations. As the Sixth Circuit Court of Appeals has explained:
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    \2\ In contrast, a partnership generally does not shield 
individuals from personal liability.

    In a practical sense, any non-corporate mining operation is 
going to be relatively small, and the probability is that the 
decision-maker is going to fit the statutory definition of 
``operator.'' In a larger, corporate structure, the decision-maker 
may have authority over only a part of the mining operation. 
[Section 110(c)] assures that this makes him no less liable for his 
actions. In a noncorporate structure, the sole proprietor or 
partners are personally liable as ``operators'' for violations; they 
cannot pass off these penalties as a cost of doing business as a 
corporation can. Therefore, the noncorporate operator has a greater 
incentive to make certain that his employees do not violate 
mandatory health or safety standards than does the corporate 
operator. [Section 110(c)] attempts to correct this imbalance by 
giving the corporate employee a direct incentive to comply with the 
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Act.

Richardson v. Secretary of Labor, 689 F.2d 632, 633-34 (6th Cir. 1982), 
cert. denied, 461 U.S. 928 (1983). Accord United States v. Jones, 735 
F.2d 785, 792-93 (4th Cir.) (``Congress may have believed that in a 
noncorporate coal mining operation the threat of criminal sanctions 
against the operator personally would provide a sufficient incentive to 
comply with the mandatory safety standards. By contrast, in a corporate 
mining operation, those who are in control might well be insulated from 
criminal responsibility, the corporation being an impersonal legal 
entity.''), cert. denied, 469 U.S. 918 (1984).

The Interpretive Issue

    The threshold issue in this situation is ``whether Congress has 
spoken to the precise question'' of the applicability of Section 110(c) 
to agents of LLCs. Chevron U.S.A. Inc. v. Natural Resources Defense 
Council, Inc., 467 U.S. 837, 842-43 (1984). If Congress unambiguously 
expressed an intent that Section 110(c) was not to apply to agents of 
LLCs, that is the end of the matter. Ibid. If the Mine Act is silent or 
ambiguous with respect to the question, however, an agency 
interpretation that Section 110(c) is applicable to agents of LLCs 
should be accepted as long as it is reasonable. Ibid.
    By its terms, Section 110(c) applies when a ``corporate operator'' 
violates a Mine Act standard and a director, officer, or agent ``of 
such corporation'' knowingly authorized, ordered, or carried out the 
violation. The threshold issue is thus whether, in enacting Section 
110(c), Congress unambiguously expressed an intent that Section 110(c) 
was not to apply to agents of LLCs. The Secretary believes that 
Congress did not express, and could not have expressed,

[[Page 38905]]

any intent with respect to agents of LLCs because, when Congress 
enacted Section 110(c), LLCs effectively did not exist.
    The courts have recognized that, over time, conditions may come 
into existence which Congress did not contemplate when it enacted a 
statute, but which implicate the concerns Congress was addressing when 
it enacted the statute. As the Supreme Court stated in Browder v. 
United States, 312 U.S. 335 (1941):

    There is nothing in the legislative history to indicate that 
Congress considered the question of use by returning citizens. Old 
crimes, however, may be committed under new conditions. Old laws 
apply to changed situations. The reach of the act is not sustained 
or opposed by the fact that it is sought to bring new situations 
under its terms.

312 U.S. at 339 (footnotes omitted). Accord Weems v. United States, 217 
U.S. 349, 373 (1910) (``Time works changes, brings into existence new 
conditions and purposes. Therefore a principle, to be vital, must be 
capable of wider application than the mischief which gave it birth.''). 
When confronted with a question of statutory application with respect 
to which Congress did not express or could not have expressed an intent 
when it enacted the statute, courts have treated the question as one 
the resolution of which was delegated to the agency Congress authorized 
to administer the statute. See NBD Bank, N.A. v. Bennett, 67 F.3d 629, 
632-33 (7th Cir. 1995); Zoelsch v. Arthur Andersen & Co., 824 F.2d 27, 
33 (D.C. Cir. 1987). See also Kauthar SDN BHD v. Sternberg, 149 F.3d 
659, 663-67 (7th Cir. 1998) (where resolution of the question was not 
delegated to any agency, the court itself filled the void created by 
Congressional silence by examining the underlying policy concerns), 
cert. denied, 525 U.S. 1114 (1999); Robinson v. TI/US West 
Communications Inc., 117 F.3d 900, 904-07 (5th Cir. 1997) (same).
    Because Congress expressed no intent with respect to agents of 
LLCs, the question becomes whether an interpretation that Section 
110(c) is applicable to agents of LLCs is reasonable. See Chevron, 467 
U.S. at 842-43; Excel Mining, 334 F.3d at 6. The Secretary believes 
that it is. LLCs generally create the same sort of shield against 
personal liability which led Congress to impose personal liability on 
the directors, officers, and agents of corporations. Indeed, LLCs fit 
within the legal definition of a ``corporation.'' See Black's Law 
Dictionary (7th ed. 1999) at 341 (a ``corporation'' is ``[a]n entity 
(usu. a business) having authority under law to act as a single person 
distinct from the shareholders who own it * * *; a group or succession 
of persons established in accordance with legal rules into a legal or 
juristic person that has legal personality distinct from the natural 
persons who make it up [and] exists indefinitely apart from them * * 
*''). See also Webster's Third New International Dictionary (2002) at 
510 (a ``corporation'' is ``a group of persons * * * treated by the law 
as an individual or unity having rights and liabilities distinct from 
those of the persons * * * composing it * * *''). Significantly, a 
number of LLCs in the mining industry are the sort of relatively large 
and corporately structured entities which Congress had in mind when it 
enacted Section 110(c). The Secretary believes that the underlying 
objective Congress identified when it enacted the Coal Act in 1969 and 
reiterated when it enacted the Mine Act in 1977--to place 
responsibility for compliance and liability for violations ``on those 
who control or supervise the operation of * * * mines as well as on 
those who operate them''--will best be advanced if Section 110(c) is 
interpreted as being applicable to agents of LLCs.
    For all of the foregoing reasons, the Secretary believes that the 
interpretation set forth in this Interpretive Bulletin is permissible 
under the Mine Act, and that it will advance the Act's objectives in 
cases involving LLCs by imposing legal liability on those individuals 
within the LLC who actually make the decisions with regard to safety 
and health in the mine.\3\
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    \3\ The Secretary recognizes that Section 110(c) has been held 
not to apply to agents of partnerships because, by its terms, 
Section 110(c) applies only to agents of corporations. Paul Shirel 
and Donald Guess, employed by Pyro Mining Co., 15 FMSHRC 2440 
(1993), aff'd, 52 F.3d 1123 (D.C. Cir. 1995) (unpublished). That 
holding has no bearing in this situation, however, because 
partnerships, unlike LLCs, existed and were a well-known form of 
business organization when Congress enacted the Mine Act.
    The Secretary does not address in this Interpretive Bulletin 
whether Section 110(c) is applicable to agents of non-traditional 
business entities other than LLCs. The Secretary will address the 
applicability of Section 110(c) to the agents of such entities as 
the question arises.

    Dated: June 30, 2006.
David G. Dye,
Acting Assistant Secretary for Mine Safety and Health.
 [FR Doc. E6-10666 Filed 7-7-06; 8:45 am]
BILLING CODE 4510-43-P