[Federal Register Volume 74, Number 226 (Wednesday, November 25, 2009)]
[Rules and Regulations]
[Page 61531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28214]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 7 and 75

RIN 1219-AB58


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 protected] (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 
relevant regulation.''
    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 
regard.

    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]
BILLING CODE 4510-43-P