Petition for Writ of Certiorari — United States v. Finley Coal Co.

Supreme Court brief1974

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Opinions below.............---.--------------- l

Jurisdiction. .----.-- Se Foy Te I

Question presented —--_ co usee rane he 2

Statutory provisions and regulations involv ed Logael 2

Statement _ ----- perks Canc ahaha ehatae is oie )

Reasons for granting the writ. --.------------- 3)

CI a ae ew naan = ee ey 15

Aen AN... <- + - == 250 PO Ty Pe eer la

REE Tis nn wna neensnud khan da ece ene I6a

Appendix C.. . ......-.~.---- 00-22-5222 e0 seen l7a

Annendit DP... - 26. enw nce sewstencesucenes ISa

Appendix I... ....-..--nsnenen-nneseseesacas 29a

CITATIONS

Cases:

Textile Mills Securities Corp. v. Commissioner,

TAS AEE PN nk pak o hs none veka veuren ane 14

United States ve American Trucking Ass'n.

Fe ee a EO canker kes ceesnanass 14

Constitution, statutes and regulations:

United States Constitution, Fifth Amend-

ne RRA SE el ia ete me ie ip apa ee ee ye ee 6

Administrative Procedure Act, 5 U.S.C. 553_ 10, 14

Conl Mine Health and Safety Act of 1969, 53

Stat. 742, 30 U.S.C. 801, ef seq..-.------- 2,9

Section 6, 3 U.S.C. 904... .. 4262525. 3

Section Bl, 2e UIA. Sil. ke cco 7

3, 6,5, 9, 10, 11, 12, 13, 14

Section 109 (b) and (¢), 80 U.S.C. 819 (b)

WE ora twins care wenn n cena

ane 010—-74-—1

i \

Constitution, statutes and regulations—Continued

Coal mine health and safety—Continued Sues

Sections 201-206, 30 U.S.C. 841-846- --- 9

Section 301, 30 U.S.C. 861. 4, 6, 7, 8, 10, 12, 13

Sections 301-318, 30 U.S.C. 861-878 _ -- -- 5, 6,9

Section 304(a), 30 U.S.C. 864(a)_ 2,7, 8, 10, 11

Section 306(d), 30 U.S.C. 866(d) - ------ 10

Section 508, 30 U.S.C. 957_------------ 2, |

3, 6, 7, 11, 12, 13, 14

Be Ne Wile ov cccccnncccvensanne 7,10, 12 \

SE CLF Be Fa nv ca ddwnncenceseredcoens 7

ee OR Sn er 2, 8,9, 12

BG ee: SPs kn cténcendensnnecaseten 3, 8-9

Miscellaneous:

H. Conf. Rep. No. 761, 91st Cong., Ist Sess _- 14

H. Rep. No. 563, 91st Cong., Ist Sess_...---- 14 \

S. Rep. No. 411, 91st Cong., Ist Sess_------ 14

OP, BE: Bean ck seetccdecundccongns 14

35 Fed. Reg. 5221-5254___-.-------------- 12

35 Fed. Reg. 17890-17929_ __-.------------ 12

Se Rk on wdc cccvenccensesse» 14

35 Fed. Reg. 12911-12951. -.-------------- 12

PLEO CE LILI EINSTEIN OEE OOO TS EIS Taig TENTS A UOT TIM A BEY tl

Ju the Supreme Gourt of the Gnited States

OctTosbeR TERM, 1974

No.

UNITED STATES OF AMERICA, PETITIONER

FInLteY CoaL CoMPANY AND CHARLES FINLEY

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

The Solicitor General, on behalf of the United

States of America, petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra)

is reported at 493 F. 2d 285. The memorandum opin-

ion of the district court (App. D, infra), is reported

at 345 F. Supp. 62. The district court’s supplemental

memorandum opinion (App. E, infra) is unreported.

JURISDICTION

The judgment of the court of appeals (App. B,

infra) was entered on March 13, 1974. A timely

petition for rehearing and suggestion for rehearing

(1)

en bane was denied on August 6, 1974 (App. C,

infra). By an order dated August 29, 1974, Mr.

Justice Powell extended the time for filing a peti-

tion for a writ of certiorari to and including Octo-

ber 5, 1974. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the coal dust regulations adopted by the

Secretary of the Interior under the Coal Mine Health

and Safety Act of 1969, 30 U.S.C. 801, ef seq., are

invalid, because the Secretary followed the procedures

required for interpretive regulations under 30 U.S.C.

957, and not the more elaborate procedures required

for improved standards under 30 U.S.C. 811.

STATUTORY PROVISIONS AND REGULATIONS INVOLVED

1. Section 304(a) of the Federal Coal Mine Health

and Safety Act of 1969, 83 Stat. 774, 30 U.S.C.

804(a), provides:

Coal dust, including float coal dust deposited

on rock-dusted surfaces, loose coal, and other

combustible materials, shall be cleaned up and

not be permitted to accumulate in active work-

ings, ev on electric equipment therein.

f 2. 30 C..R. 75.400-1, provides:

; (a) The term “coal dust’? means particles of

: coal that can pass a No, 20 sieve.

(b) The term ‘float coal dust” means the coal

: dust consisting of particles of coal that can pass

4 a No. 200 sieve.

ments larger in size than coal dust.

3. 380 CPLR. 75.400-2, provides:

A program for regular cleanup and removal

of accumulations of coal and float coal d isis,

loose coal, and other combustibles shall be estab-

lished and maintained, Such program shall be

available to the Secretary or authorized

representative.

4. Section 598 of the Federal Coal Mine Hestth and

Act~ of 1269, 83° Stat. 803, 30 U.S.C. 957

provides:

The Secretary, the Secretary of Tkealth,

Education, and Welfare, and the Panel ['] are

authorized to issue such regulations as each

deems appropriate to earry out any provision

e of this chapter.

d. Section 101 of the Federal Coal Mine Health and

Safety Acc oF 1969, 83 Stat. 745, 30 U.S.C. SUL, pro-

Vides in pertinent part:

Safety

(a) * * * The Secretary shall, in accordance

With the procedures set forth im this section,

develop, promulgate, and revise, as may, he ap-

propriate, jinpieved imandatory safety stend-

wrds for the protection of tife and the preven-

tion of inituves: in a coal mine, and shall, in

aecordaice with the procedures set ford in this

section, promulgate — the miindatory heaith

standards transinitted to him’ by. the Secretary

of dfealth, Education, and Welfare.

* * * * *%

mandatory safety standards, the Secretary shall

consult with the Secretary of Health, Educa-

The “Panel” refers to the Interim Compliance Panel estab-

lished by 30 U.S.C. S04,

tion, and Welfare, the Secretary of Labor, and

with other interested Federal agence ies, appro-

priate representatives of State agencies, appro-

priate representativ es of the coal mine operators

and miners, other interested persons and orga-

nizations, and such advisor'y committees as he

may appoint. Such development and revision

of mandatory safety standards shall be based

upon research, demonstrations, experiments, and

such other information as may be appropriate.

In addition to the attainment of the highest

degree of safety protection for miners, other

considerations shall be the latest available scien-

tifie data in the field, the technical feasibility

of the standards, and experience gained under

this and other safety statutes.

* * * * *

(j) ** * All interpretations, regulations, and

instructions of the Secretary or the Director of

the Bureau of Mines, in effect on December 30,

1969 and not inconsistent with any provision of

this chapter, shall be published in the Federal

modified or superseded in accordance with the

provisions of this chapter.

6. Section 301 of the Federal Coal Mine Health and

Safety Act of 1969, 83 Stat. 765, 30 U.S.C. 861, pro-

vides in pertinent part:

* * * * *

(d) * * * In any case where the provisions of

sections 862 and 878, inclusive, of this title pro-

vide that certain actions, conditions, or require-

ments shall be carried out as prescribed by the

Secretary, or the Secretary of Health, Education,

and Welfare, as appropriate, the provisions of

{

‘|

‘

9 ”

ae. Sree ee eee

section 553 of Title 5 shall apply unless either

Secretary otherwise provides. Before granting

any exception to a mandatory safety standard

as authorized by this subchapter, the findings

of the Secretary or his authorized representa-

tive shall be made publie and shall be available

to the representative of the miners at the

affected coal mine.

STATEMENT

Respondents, Finley Coal Company and Charles

Finley, operated two coal mines in Hyden, Leslie

County, Kentucky. On December 30, 1970, there was

an explosion in the interconnected underground mines

which resulted in the death of 38 of the 39 miners then

underground. As a result of the explosion and the

subsequent investigation by the Department of

Interior, a federal grand jury on June 23, 1971 re-

turned a 24-count indictment against respondents

charging each with various violations of the safety

standards contained in Subchapter I1J—Interim Man-

datory Safety Standards for Underground Coal

Mines, 30 U.S.C. 861-878, and the implementive regu-

lations for each standard.’

? The indictment, a copy of which we are lodging with the

Clerk, was issued pursuant to the criminal provisions of 30

U.S.C. 819 (b) and (c). On February 23, 1971, the Bureau of

Mines had issued a proposed Order of Civil Assessment of Civil

Penalties to respondent Finley Coal Company in the amount of

$53,600. Finley protested the Order and upon review it was

modified upward to $53,800. The amended order was protested

and no payment has been made in the civil penalty proceeding.

The civil assessment procedures of the Act are being contested in

a separate action National Independent Coal Operators, Inc. v.

Morton, No. 73-2066 (pending on petition for a writ of certiorari).

‘

EAN Se.

Lntb%

By pre-trial motion, respondents sought all docu-

mentation of consuliations held by the Secretary

(pursuant to 30 US.C, SILCd))} before issuing the ree-

ulations in question, Petitioner replied that no such

consultations were held since the regulations in ques-

tion were promulented pursuant to 50 U.S.C. SL and

957 as implementing and interpretative regulations de-

signed to carry out the interim: safety standards ia 20

U.S.C. 861-878. Upon this disclosure res pondetts iiled

motions alleging that the dual civil and criminal pre-

ccedings Violated their Fifth Amendment right aealust

double-jeopardy {and that the indictments should alse

he distiissed becatise the reeretary exceeded bis au-

thority in promulgating the reeulatious.

Following a hearing on respondents’ motions, ihe

distriet court held that where the portielar interin

statutory standard does not specifically aniherize im-

piementiug regulations, the regulations promulgated

by the Secretary were necessarily “improved manda-

tory safety standards” and invalid because the Seere-

tary did net cigage in the consultations with industry

and government required by 30 U.S.C. S11(¢) for new

standards (App. Dy, iafre, pp. 25.A-27.4). The eourt de-

clined to dismiss the Indictment. reasoniag thet or the

absence of augmenting standards, while alvcecne: the

nature and perheps the dificuity of proof fom mumer-

ous counts], cannet affect the maintenance of the pro-

In fact there had been considerable consuliation with in-

distry but the consukations within government reauired for

new standards by 30 CLS.C.811¢d) had net been held.

* Respondents’ double-jeopardy argument was rejected hy

beth the distriet court and court: of appeals (App. A. duties

App. Do dafra. pp, 20N-25.4 ),

cecding” Cid. at 274A). However, in order to provide

petitioner with an appertable order the court dismissed

ene count of the indictment, Count VIE! ‘on the

eronud of defective rule making and apparent inabil-

itv of the Government to make a vrima facie case

aeuinst the defendants on the statutory lancunge

alone” Cid. at 284A).

Since the court's opinion did pot consider whether

tre reguiationus might be sustained under the Act's

general rule-making provision, 80 LUS.C. 957 (supra,

p. 3) petitioner filed a motion for reconsideration.

The district court in its unreported Supplemental

“Memorandum (Aye. Kafr, j. OLA) held, “The See-

retary chose to exercise the authority” of 30

U.S.C. 86101) alone and sat to Imeorpernate the wen-

eral ednivistrative rule making euthority of 290 U.S.C,

Yt.” On this basis it pened that the regulations

were Mivalid: execot where tie section imolementod

Spe enh (. ied Vor aetien nv the 5E eet:

2. The court of appeds affirmed. It held that in

premificating the regulations of November 20, 1970,

winkeh were eaditied in 30 CLPLR. Part 75, the See-

retary revised the statutory safety standards con-

tained in’ the Act. Therefore, in the absence

ef eivhority in the statutory standard itself directing

the Seereiary to establish additional implementing

Rech count of the indictinent alleged violations of both the

Satntory intertaimandatory health or sefety standards and the

corresponding tuplementing reenlations promuleated by the

secretary, Count VIE. disinissed by the court. alleged violations

of both So Tls.C. s64Ga) and 30 CAELR. 75.400,

= : ~ ‘

ee ee i! <2

whARS

So hekrer

regulations pursuant to 36 U.S.C. 861(d), the special

rule-making procedures in 30 U.S.C. 811, had to be

followed. The court also held that 20 C.F.R. 75.400-1,

which defines loose coal and coal dust, iias the effect of

‘changing the statutory standard established in 30

U.S.C. 864(a), which requires that loose coal and

coal dust be cleaned up and not allowed to accumu-

late. The court reasoned that because the lower court

determined that a prima facie case could be made

on the basis of a statutory standard alone, the regu-

lations necessarily altered the legal relations of the

parties and was thus a new standard; and that 30

C.F.R. 75.400-2 similarly changed the statutory stand-

ard of 30 U.S.C. 864(a), by imposing the establish-

ment of a regular cleanup program in addition to the

coal dust limitations of the statutory standard (App.

A, tufra, pp. 1A-#2.A).

One judge, in a separate concurring opinion, found

that the purpose of the regulations issued in Novem-

ber, 1970 was not to amend and revise the statutory

standards (as the majority had found), but only to

amend and revise the regulations published on

March 28, 1970. Nonetheless, he found that 30 C.F.R.

79.400-2 (the cleanup requirements) substantively al-

tered the statutory standard: and, therefore, the Secre-

tary was required to conferm to 30 U.S.C. 811(©), in

promulgating this standard. In addition, he noted that

he would not find that the definitions contained in

30 C.F.R. 75.400-1 altered the mandatory standards

but for petitioner's concession that both 30 C.F.R.

75.400-1 and 30 C.F.R. 75.400-2 were required in order

to make a prima facie case against defendants. He

applied the principle of strict constuction in criminal

ezses, and held that the definitions contained in 30

C.FLR. 75.400-1 must be viewed as imposing additional

burdens and, therefore, couid not be considered in-

terpretative (App. A, infra, pp. 12A-15A).

REASONS FOR GRANTING THE WRIT

1. In adopting the Federal Coal Mine Health and

Safety Act of 1969 Congress declared that “the first

priority and concern of all in the coal mining industry

must be the health and safety of its most precious re-

source—the miner’’ and that, therefore, the purpose

of the act was “‘to establish interim mandatory health

and safety standards and to direct the Secretary of

eelth, Education, and Welfare and the Secretary of

the Interior to develop and promulgate improved

mandatory health or safety standards to protect the

health and safety of the Nation’s coal miners.” 30

U.S.C. 801(a), (¢) (1). Congress consequently enacted,

as part of the Act, interim mandatory health and

safety standards to take effect immediately * but also

authorized and directed the Secretary to undertake

scientific studies and, after consultation with labor,

industry and other branches of government, to develop

and adopt improved standards. 30 U.S.C. 811(a), 30

*The Interim Mandatory Safety Standards for Underground

Coal Mines. Subchapter TIL of the Act. are codified at 30 U.S.C.

S61 7s. The Interim Mandatory Health Standards are set forth

as Subchapter IL of the Act. 30 U.S.C, 541-846.

etre Tee

Por aes ae

Congress, however, recognized that the interim

statutory standards would require implementing reg-

ulations to be adopted by the Secretary. Accordingly,

in addition to the elaborate procedure set up for

adoption ef new substantive cays (30 U.S.C.

Sll¢a)), the Act provides (50 U.S.C. s6i¢d)) that

Where sections specifically call for ddbetaataiis by

the Soeretary those determinations shall be made

accordance with 6 U.S.C. 553, the publie rulesnmakine

provisions of the Administrative Procedure Kee Mh

addition, the Secretary is specifically given autherity

“ee * to Issue such regulations as [he] deems appro-

priate to carry out aay provision of this chapter” (20

Us. 57; emphasis added).

‘The conrt of appeals’ decision in effect tivalidates

this careful grat of reeulatery authority, aud im-

pedes enforcement of the Aet bv striking down all

Lnypeementing reralations (30 ClELR. Pout 75) whieh

were net based ona grant of role-makine authority in

a perticniar statutory cafety standard. The regulations

ve 30

Cs S4(2, S400) and 8066). Thererore, in addi-

tien, to the dishcssal of Coins ee BP peti her will

ance in the instant ca-e are those interpretins

not be able to employ Part 75 regulations ty atten pt-

Ing tou prove Counts VITE, PX, X, NI, NN, NN,

NNTE, ANTIT, andN NIV, all of whieh involved one

of the noove statutory provision as. [PY atlowed to stand,

the court's dleeiston could niveet its Mwaniy as 1060 sce-

tions of the Departinent of Interior's Part 75 recula-_

tions, Not only will this have ao severe impact on

the adiinistratien of the Aet im criminal eases, birt

it will also have ao serious adverse effect om pine

See

civil penalty enforcement proceedings now pending

before the Secretary. Even if the court’s decision were

linvited to the facts of this case, the decision renders

the coal dist provisions, crucial to meine satety, Ineifee-

tive and renders uopunishaile lamdreds, if wot

thousands, of past Vielations, “he iinportance of ime-

Inediate aid offective ctfevecnent of the Aet to pre-

vent loss of dfe throes chine disasters, and the levee

ninher of ponding peoreoddies, binke reviews bs this

Court appropriate.

2. ihe comrt of appends wes incerreet in liternret-

lee the veyulath os in question as being “inipreved

Hiciktaeory safety siaidards” within the special mean-

Mit «© eo) { Hog 24 We? Pee rid Lehi; an ee A ir Tae

. rd 1 ° 's . ea, Few a ge ay ‘ » Pe .

Speeiu cohnsritatian proccaures of that seetion.

ass

3 bat these ere pte rhe VE Oi int Hsit itive rewitla-

tietis—and not the “Tinpresed standards” e¢eanteim-

puated by OG ULS.CL SEP Ca d—scens clear in reading the

rectlotions with the seetion of the stutute to cw vhiel

they apolv. Phe statute section, 30 ULS.CL $6400) (see

p. Zo stiowae. reqinves that “Coal dust, including feat

coub cust" " * be eleancd up and not be perinitted to

nechmiulate - Ag

. The regulations deine “evel dist’,

“yoat cork dust, and then require that a cles iy

prograin be established and maintained. Phe peels.

tiolis in no way change, amend or revise the

tive provivions of the mandatory safety stan aide. Po

the contrary, they are interpretive of the resmcetive

statutory standards, and as such were validly pao: col

gated under the general rulemaking authority erariod

in 30 ULS.C. 957.

2 ateboe erdsemeoaadss

That the definitions are no more than that is indi-

eated by their lack of novelty. For example, the defini-

tion of coal dust used in 30 C.F.R. 75.400-L was first

used in Bureau of Mines Research Bulletin No. 20 is-

sued in 1911 and has been reaffirmed continuously (see

Bureau of Mine Information Circular 8801 issued

1950). The fact that the definitions make the statutory

standard more definite and clear 1s not to revise but,

rather, to clarify, the statutory standard.

The administrative history points in the same di-

rection, On March 30, 1970, the interim statutory

standards were to become effective. To mect that dead-

line, the Secretary had to issue regulations to

implement the Act by that date. Accordingly, on

March 28, 1970 (35 Fed. Reg. 5221-5254), the Secre-

tary promulgated Part 75 of 30 C.F.R., consisting

of a verbatim quotation of each statutory standard,

followed by interpretive and implementing regula-

tions (see supra, pp. 2-3). The Secretary cited 30

U.S.C. 811(j) and 30 U.S.C. 957 as authority for

this action.” On August 14, 1970 (35 Fed. Reg. 12911-

12951), the Secretary amended some of his inter-

pretive standards and proposed additional ones. On

November 20, 1970 (35 Fed. Reg. 17890-17929),

the Secretary republished Part 75 with the amend-

ments and additions. The republished Part 75 of

the regulations cited 30 U.S.C. 861 and 30 U.S.C.

957 of the Act as authority. However, the preface

or preamble to the regulation only listed 30 U.S.C.

? The reference to Section 811 was not to the provisions on im-

proved standards. but to Section (j) on making old regulations

applicable until new ones are promulgated (see p. 4. supra).

abl

861 as authority. A fair reading of th's history

in our view shows that the Secretary did not

follow the provisions of 30 U.S.C. 811(¢) because the

amendments were interpretive and the extended pro-

cedures of that section designed for a major re-study-

ing of coal mine safety would have been inappro-

propriate and would have delayed enforcement

contrary to the intent of Congress.

That it is inappropriate to apply 30 U.S.C. 811(¢)

procedures to regulations such as those at issue here,

becomes even clearer on close scrutiny of 811(¢).

Under 811(¢), the “development and revision” of im-

proved “mandatory safety standards” is to be based

upon “research, demonstrations, experiments’? and

other information. Consideration “shall” be given to

“the latest available scientific data in the field, the

technical feasibility of the standards, and experience

gained under [the act]” (Emphasis supplied.) The

clear and unavoidable thrust of the section is its ap-

plicability only to long term improvement in mine safety

based on new research and technology. It would seem

beyond discussion that Congress did not expect the

Secretary to produce new knowledge in this area or

undertake an 811(c) study prior to or virtually con-

temporaneously with the effective date of the

act *.

*It should be noted that the Secretary did promulgate the

implementing regulations in question in the manner required

by 30 U.S.C. 861 and 957. Section 861 gave the Secretary dis-

cretionary authority to Cetermine whether to follow 5 U.S.C. 553

an the promulgation of regulations concerning provisions of 30

U.S.C. 862 to STS in which he was required to perform certain

actions. The implementing regulations promulgated pursuant to

‘

;

}

pias atte Lor

| beets tataa iio elie

The basic vice of the decision below thus lies in its

failure to reconcile the three previsions authorizing

the Secretary to promulgate regulations. Nothing in

30 USC. Sil(a) nor in its legishitive history supports

the cenclision that it is to '« read to the exclusion

of 60 USC. 957. The two sections of the same Act

are sinitanecis expressions of legislative invent and

are to be construed so as to give effect to beth. Textile

Mills Scenritios Corp Vv. Comuiissioner, 312 U.S. B26:

United Slates ve American Treching Ass’iis., Lie, BVO

US. 534. The clesr meaning of 30 U.S.C. 857 is to

authorize inunediate iaplementive and incerpretive

regulations without the procedures, relevant to a di’-

foreit mirbose, of 30 U.S.C, dite).

in failing to recognize this the courts below in strik-

Ipe down present reeulations have dealt a) serious

hiow to the eniorcement of this tmportant Safer

Act. They nave also impeded the ability of the Secre-

(ary toduake needful implementive reeulations, with-

out procedures designed for long range changes, and

therefore tolerant of delays inappropriate for day-by-

day enborcement of savety iueasures.

Secon Mr ofthe Net. fall within an exception to the veneral rule-

oling reenirements of 4 TSC. 555 (dyed) amd (dyzcp. Never-

theless, the Secretary dil vive notice of proposed releereh tree

published in the Federal Register on August 14. 1970 (35 Fed.

Rew, id). Phis notice of publication is recited in the preface

to the interpretive regulations in question.

“See S. Rep. No. 411, 91st Cong., Ist Sess.; HH. Rep, No. 563,

M1-t Cong., Ist Sess.: HL. Conf. Rep, No. 761, 1st Cong.. Ist Sess.

CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be granted.

Rosert H. Bork,

Solicitor General.

Henry FE. PErersen,

Assistant Attorney General.

Harry R. Sacuse,

Assistant to the Solicitor General.

JEROME M. FErr,

Ivan MICHAEL SCHAEFFER,

Attoricys.

OcToBER 1974.

559-910—74——3

APPENDIX A

United States Court of Appeals for the Sixth Circuit

Unirep States oF AMERICA

Fintey Coat CoMPANY, A PARTNERSHIP

AND CHARLES FINLEY, AN INDIVIDUAL

On Appeal From the United States District Court for

the Eastern District of Kentucky

Decided and Filed March 13, 1974

Before: McCree, Circuit Judge, O’SuLLivay, Senior

Circuit Judge, and Pratt,’ District Judge

McCree, Circuit Judge. This appeal requires us to

determine whether the Secretary of Interior’s failure

to follow the formal rule-making provisions of 30

U.S.C. §811 in promulgating regulations establishing

certain mine safety standards precludes a prosecution

for their violation. We hold that it does, and we affirm

the order of the district court dismissing Count 7 of

a pending twenty-four count indictment that charged

defendants-appellees Finley Coal Company and

Charles Finley with willful violations of interim

mandatory safety standards established by the Fed-

eral Coal Mine Health and Safety Act of 1969, Pub.

LL. 91-173, Dee. 30, 1969, 83 Stat. 742, 30 U.S.C.

§§ 801 ct seq., and of regulations promulgated by the

Secretary of Interior thereunder, 30 C.F.R., Part 75.

'The Honorable Philip Pratt, Judge, U.S, District Court

for the Eastern District of Michigan, sitting by designation,

(1a)

;

Finley Coal Company operated several coal mines

at Hyden, Kentucky, and Charles Finley was a part-

ner active in the company, The indictment followed

an explosion in appellees’ underground mines, in

Which thirty-eight miners died. Preliminary to trial,

appellees challenged the indictment, contending that

the regulations implementing the safety standards

were invalid because the Seeretary of Interior in

promulgating them failed to follow the mandatory

consuitation procedures of 30 U.S.C. § 811. The United

States concedes that the Secretary did not engage in

consultations sufficient to satisfy Section 811(¢) in

establishing the challenged safety standards, but

argues, nevertheless, that the regulations were prop-

erly promulgated pursuant to authority found in sev-

eral other provisions of the Act, namely, 30 U.S.C.

§ 861(d) and 30 U.S.C. 6957. The district court up-

held certain regulations that it determined were

adopted under the specifie authority of Section 861,

but held invalid all other regulations. It does not

appear that the district court considered whether the

regulations it held invalid could be sustained under

the general grant of administrative authority in See-

tion 957. The court held that the defective rule-

making, in itself, did not require dismissal of the

indictment because it charged violations not only of

* The district court's decision was rendered in a memorandum

opinion, filed July 7, reported at 345 F. Supp. 62, and a sup-

plemental memorandum opinion, filed September 12, 1972. The

first opinion does not consider whether the regulations might

be sustained under 957. The second opinion more specifically

States:

“The Seeretary chose to exercise the authority of 30 U.S.C,

S61(d) alone and not to incorporate the general administrative

rule making authority of 30 U.S.C, 957. The sole question is

whether, section 861(d) properly may be construed to bring

the subject regulations within its range of authority.”

the invalidated regulations but also of the standards

established by Congress, The court concluded, how-

ever, that the government could not make a prima

facie case under Count 7 of the indictment on the

basis of the statutory standards alone and, accord-

ingly, Count 7 was dismissed, ‘The government ap-

parently concedes that it could not prevail on this

count without the stricken regulations.

The United States brought this appeal, pursuant to

I8 U.S.C. 63731, from dismissal of Count 7 of the

indictment. The sole issue presented is whether the

Secretary of Interior was required to follow the pro-

visions of 30 U.S.C. § 811 in promulgating the regula-

tions codified in 30 C.F.R. § 75.400.

Count 7 charged willful violations of 30° U.S.C.

§864(a) and the regulations codified at 30 C.FLR.

8 75.400.’ Section 864(a) provides:

* As set forth in appellant’s brief. Count 7 charged:

“COUNT VII

“The Grand Jury further charges: 1. Each allegation con-

tained in paragraphs 1 and 2 of the Count I hereof is realleged.

reaffirmed, and incorporated herein. 2. On or about June 19,

1970, the Finley Coal Company and Charles Finley did will-

fully fail to clean up and prevent the accumulation of coal dust.

including float dust deposited on rock-dusted surfaces, loose coal,

and other combustible materials in active workings of Number

1) underground coal mine, in violation of Sections l09(b) and

wha) of the Federal Coal Mine Health and Safety Act of

1060, 2OTUS.CLSLO(b) and S64(a), 50 CLP. 75.400,"

We observe a curious sequential relationship between the date

of the promulgation of the regulations cited in Count 7 of the

indictment. November 20, 1970, and the date of the violations

charged in that count, June 19, 1970. At oral argument. counsel

advised us that on June 19, 1970 regulations were in effect with

language identical to that found in the November regulations

that the indictment charge’ were violated in the indictment.

(Apparently. the earlier regui. ions were promulgated in Mareh

170 when the Act first took effect.) Of course, the statutory

6S hy IR ly A INE eb GCI mae NS ;

F Die wie

(a) Coal dust, including float coal dust

deposited on rock-dusted surfaces, loose coal,

and other combustible materials, shall be

cleaned up and not be permitted to accumulate

In active workings, or on electric equipment

therein.

The pertinent regulations provided:

\75.400-1 Definitions.

(a) The term “coal dust” means particles of

coal that can pass a No. 20 sieve.

(b) The term “float coa! dust” means the coal

dust consisting of particles of coal that can pass

a No. 200 sieve.

ments larger in size than coal dust.

8 75.400-2 Cleanup program,

A program for regular cleanup and removal

of accumulations of coal and float coal dusts,

loose coal, aiid other combustibles shall be estab-

lished and maintained. Such program shall be

maintained. Such program shall be available to

the Secretary or authorized representative.

We first observe the express requirement of manda-

tory consultation established by 30 U.S.C. $811. The

section provides in pertinent part:

(a) The Secretary shall, in accordance with

the procedures set forth in this section, develop,

promulgate, and revise, as may be appropriate,

provision underlying the subject regulations. Section S64(a),

which was also relied upon in Count 7, was in effect on the

date of the violations charged. Appellant does not raise the

question whether a prosecution and conviction relying upon the

challenged November regulations, under these circumstances.

would violate the constitutional prohibition against ex post

facto laws. Since this contention was not made and the question

was not briefed and argued, we intimate no views concerning

It.

improved mandatory safety standards for the

protection of life and the prevention of injuries

in a coal mine, and shall, in accordance with ine

procedures set forth in this section, promulgate

the mandatory health standards transmitted to

him by the Secretary of Health, Education, and

Welfare.

* * * * *

datory safety standards, the Secretary shall

consult with the Secretary of Health, Eduea-

tion, and Welfare, the Secretary of Labor, and

with other interested Federal agencies, appro-

priate representatives of the coal mine opera-

tors and miners, other interested persons and

organizations, and such advisory committees as

he may appoint. Such development and _ revi-

sion of mandatory safety standards shall be

based upon research, demonstrations, experi-

ments, and such other information as may be

appropriate. In addition to the attainment of

the highest degree of safety protection for

miners, other considerations shall be the latest

available scientific data in the tield, the technical

feasibility of the standards, and experience

gained under this and other safety statntes.

(Emphasis added).

This language must be construed in light of a defini-

tional provision of the Act, 30 U.S.C. &802(7), which

provides:

For the purpose of this chapter, the term—

* * * (1) ‘‘mandatory health or safety stand-

ard’’ means the interim mandatory health or

safety standards established by subchapters IT

and IIT of this chapter, and the standards

promulgated pursuant to subchapter I of this

chapter; * * *

When Section 811(¢) is read in conjunction with the

definitional provision it is apparent that Section 811

develops new mandatory standards but also when the

Secretary “trevises’’ an interin: mandatory safety

standard.

Appellant does not now press the argument that

the regulations codified in 30 C.F.R. § 75.400 can be

sustained under the authority of 30 U.S.C. § 861(d),

but that contention does not appear to have been

Wholly abandoned on appeal. Section 861(d) provides

in relevant part:

(d) In any case where the provisions of see-

tions 862 to 878, inclusive, of this title provide

that certain actions, conditions, or requirements

shall be carried out as prescribed by the Seere-

tary, or tne Secretary of Health, Education,

and Welfare, as appropriate, the provisions of

section 553 of Title 5 shall apply unless either

Secretary otherwise provides. * * *

We agree with the district court that the regulations

here at issue cannot be upheld under the authority of

Seetion 861(d) heeause Section 864(a) does not pro-

vide that the Seeretary may prescribe how the “cer-

tain aetions, conditions, or requirements” set. forth

therein shail be carried out.

Appellant's primary contention on appeal is that

the regulations codified at 30 CLF.R. § 75.400 are in-

terpretative regulations properly promulgated under

the general rule-making authority of 30 U.S.C. 6957

te carry out Section 864(a). and, as sueh. had the

effect of law.’ Section 957 provides:

‘Counsel has net contended. nor does our research indicate.

that the regnlations challenged in this appeal could be. sus-

tained under the authority of 30° TLS.C, SS11(j). which

provides:

“ALL interpretations, regulations, and instructions of the

Sceretary or the Director of the Bureau of Mines. in effect

The Secretary, the Secretary of Health, Edu-

cation, and Welfare, and the Panel are author-

ized to issue such regulations as each deems

appropriate to carry out any provisions of this

chapter.

To be sure, the legislative history indicates that

Section 957) permits ‘‘administrative regulations”

needed to carry out provisions of the Act. Senate Re-

port No, 91-411, 91st Congress, 1st Session 87 (1969) ;

IER. Rep. No, 91-563, 91st Congress, Ist Session 618

(1969). But we have found no indication that Con-

gress intended $957 to apply in cases involving not

only administrative implementing regulations but alse

modifications of mandatory health and safety stand-

ards. If the Secretary was engaged in the “develop-

ment and revision of mandatory safety standards,”

within the meaning of §811(¢), then he should have

followed the specific procedure of 4811, mandated

by the legislative directive to develop and revise these

standards, Since specifie procedures were established,

the Sceretary cannot rely upon the general grant of

administrative rule-making authority of S957. See

Hellmich v. Hellman, 276 U.S. 233, 237 (1928).

Our examination of the Federal Coal Mine Health

and Safety Act, its legislative history, and the entire

record before us, indicates that appellant did revise

a mandatory safety standard within the meaning of

SSH. in promulgating the regulations codified at 30

CFR. § 75.400. This conclusion is supported, in the

first instance, by the Secretary of Interior's own

characterization of his actions. The regulations

pubiished on November 20, 1970, were introduced in

the following manner:

on December 30. 1969. and not) inconsistent with any pro-

vision of this chapter. shall be published in the Federal Register

and shall continve in effect until modified or superseded in

accordance with the provisions of this chapter.”

ete 910 34 4

everest |

eS RS Le

Lycee

Tiree 30—Minenart Resources

Chapter I—Burean of Mines, Department of

the Interior

Subchapter O—Coal Mine Health and Safety

PART 75-——-MANDATORY SAFETY STANDARDS,

UNDERGROUND COAL MINES

Pursuant to the authority contained in para-

graph (d) of section 301 of the Coal Mine

Health and Safety Act of 1969 (Public Law 91-

173), there was published in the Federal Regis-

tered (sic) for August 14, 1970 (35 F.R. 12911),

a notice of proposed rulemaking setting forth

proposed amendments and a new Subpart. 8,

“Approved Books and Records,” to Part. 75

of Title 30, Code of Federal Regulations, re-

garding mandatory heaith and safety standards

in underground coal mines.

Hiterested persons were afforded a period of

30) days from the date of publication of the

notice in which to submit written comments,

suggestions, or objections to the proposed

amendments and the proposed new Subpart S.

The period for submitting written coniments,

suggestions, or objections was subsequently

extended to September 30, 1970, by a notice pub-

lished in the Federal Register for September 5,

1970 (35 FR. 14146). Approximately 21 associ-

ations, companies, and individuals submitted

comments, suggestions, or objections. All were

given careful consideration. A summary of the

comments and an explanation of the actions

taken with respect to them will be prepared by

the Bureau of Mines and will be available 30

days from the date of this publication in the

Office of the Deputy for Health and Safety,

Room 4512, Bureau of Mines, Department of

the Interior, Washington, D.C. 20240,

Some of the standards have beon revised as

suggested; in’ other instances, revisions were

made in view of the comments received, Some of

the suggestions could not be adopted because

they were contrary to the statutory provisions.

(Emphasis added.)

Part 75 of Title 30 Code of Federal Regula-

tions, Subchapter O-—Coal Mine Health and

Safetv—Mandatory Health and Safety Stand-

ards, Underground Coal Mines, amended and

reviscd as set forth below is herewith pronmul-

gated and shall become effective upon publica-

tion in the Federal Register.

Warren J. Piekii,

Seerclary of the @uterior.

NOVEMBER 12, 1970.

We agree with appellees that the Secretary could not

have made it any plainer that he was amending and re-

vising the standards.’

It is equally clear that the regulations challenged

in this appeal were intended to be amendments and

revisions of statutory standards. 30 C.F.R. 6 75.400-2

imposes a requirement additional to those iniposed by

Congress in § 864(a). The statute requires only that

coal dust be cleaned up and not be permitted to ae-

cumulate. It does not require, as did the regulation,

that a “regular cleanup” program be established, main-

tained and made available to the Secretary. In another

part of the Act Congress did expressly command that

some regular or periodic programs be established and

made available to the Secretary to combat other safety

* As noted above, the United States has conceded that the

consultations engaged in cannot satisfy 30 U.S.C. §s11(c) if

that provision is applicable. Apparently. the consultations that

were engaged in preliminary to the promulgation of the regula-

tions were meant to satisfy the lass rigorous requirements of 5

U.S.C. § 553, a section of the Administrative Procedure Act. Sve

30 TUS.C. SS61(d).,

clad AR tea ba OA NLA net ONE LOA RP Ra

104

hazards addressed by the interim standards. Ser, ¢ 9.

30 U.S.C. § 863 (a), (1), (2) & Cw). We conclude that

30 C.P.R. § 75.400-2 changed the standard in & 864(a).

Also, 30 C.F.R. § 75.400-1, although east in definitional

language,” has the effect of changing the standards

established by Congress in § 864(a) if it imposes an

additional requirement. And the very fact that the

district court determined that a prima facie case could

not be made on the basis of § 864(a) alone, in the ab-

sence of the regulations, a determination not. chal-

lenged on appeal, indicates that the regulations altered

the legal relations of the parties.

We have examined Gibson Wine Co. v. Snyder, 194

F. 2d 329 (D.C. Cir. 1952), Tertile Mills Sceuritics

Corp. Vv. Commissioner, 314 US. 326. (1941), Toilet

Goods Association Vv. Gardner, 278 F. Supp. 786

(S.D.N.Y. 1968), Toilet Goods Association vy. Gardner,

OHO E21 O77 (2d Cir. 1966). «fd 387 US. 158 (1967).

relied upon by appellant in support of the contention

that the challenged regulations can he upheld under

§ 957 as “interpretative”? regulations. We agree with

appellee that these cases are inapposite because none

invelved a criminal proseeution and none was con-

sidered in a context where Congress had established a

procedure permitting the agency to revise statutory

standards only after engaging in mandatory eonsulta-

tion procedures with interested and affected parties.

Tt matters not whether under a different. statutory

scheme a general grant of rule-making authority micht

have supported the regulations. Here. Congress re-

“The Jabel placed upon ageney action hy administrators is, of

somre, not conclusive. Seo Columbia Proadcasting System. Due.

v. Vustted States, 816 U.S. 407. 116 (1942) + Pows// y. I'nited

States, MOT S, 276, IS4-85 (1937): 4. F. Of Lov. Lahor Board.

AOS TUS. 401, 408 (1990). See aleo Pharmaceutical Manutac-

pore Association \. Finch, 207 F. Supp. SS (D. Del, 1970).

11a

quired a course of consultation as a condition prece-

dent to any substantive revision of mandatory stand-

ards, except for modifications specifically authorized

under § 861(d).

Also, we reject the suggestion that we should uphold

the regulationsgas contemporaneous constructions of

the Act by the person charged with its implementa-

tion and enforcement. In doing so, we are aware that

under the predecessor statute to the Act here consid-

ered, another court has concluded that the interpre-

tation of the statute by the administrator charged

with its execution is entitled to great weight. Sf.

Mary’s Sewer Pipe Co. v. Director of United States

Burcau of Mines, 262 F, 2d 378 (3rd Cir. 1959). And

we suggest no departure from this principle in the

ordinary case involving a prior administrative con-

struction, typically Hran adversary context, of a sub-

stantive provision of & remedial statute. But whatever

applicability this canon may have in a case where the

ageney’s rule-making Yuthority is conceded and only

its interpretation of a rule is involved, here the very

power of the agency to promulgate the challenged

regulation is assailed, Accordingly, we conclude that

an administrative officer’s interpretation of an Act of

Congress to permit him to exercise broad power to

fesh-out a statute by revising interim statutory stand-

ards should be tested with less indulgence. This is

particularly true when the interpretation permits

promulgation of regulations and their willful viola-

tion can result in criminal prosecution. Tn this in-

stance, we hold that the procedures established by

Congress must be strictiv observed.

Here, Congress granted the Secretary broad power

to revise and even develop néw substantive standards

to promote the safety of coal miners. However, Con-

gress Intended that this authority could be exercised

pee

12a

only after compliance with a detailed course of con-

sultation designed to ensure participation in the

decision-making process of interested and affected

parties.

We hold that the Seeretary was obligated to follow,

but did not follow, the provisions of § 811(¢) in prom-

ulgating the regulations codified at 30 C.F.R. & 75.400.

Administrative rule-making in disregard of procedural

requirements is ultra vires and, we hold that the

challenged regulations were improperly promulgated

and are invalid. Te.raco, Ine. v. Federal Power Com-

mission, 412. F. 2d 740 (3rd Cir. 1969): Kelly vy.

United States Department of the Tnterior, 339 F.

Supp. 1095 (E.D. Cal. 1972): American President

Lines, Ltd. v. Federal Maritime Board. B17 FO” 887

(D.C. Cir. 1962).

The judgment is affirmed and the case re.aanded for

further proceedings not inconsistent with this opinion.

Pratt, District Judge, concurring.

While T coneur in the result reached by the ma-

jority, IT disagree to some extent with the approach.

As I read the opinion, the majority determines that

it was the purpose of the Secretary to amend and

revise the statutory Interim Mandatory Safety Stand-

ards with the promulgation of regulations on Novem-

ber 20, 1970. Reliance is placed on the Jancuage

contained in the promuls ration notice quoted in full

in the majority opinion (pp. 7-8, supra.) and on the

nature and content of those regulations, codified at

30 C.F.R. § 75.400 ct seq. It then concludes that all

“Only the regulations codified at 30 CLFLR. § 75.400 are at

issue on this appeal. We are not called upon to consider, and

we intimate no view concerning, the v: alidity of any of the

other regulations promulgated in November 1970 and codified

in other sections of 30 C.F.R., Part 75.

13A

such regulations are invalid because of the failure to

conform to the requirements of 30 U.S.C. §811(e).

It appears to me, however, that the purpose of the

regulations issued in November, 1970 was not to amend

and revise the statutory interim standards of the Act

but rather that the Secretary intended to amend and

revise the regulations which had been published on

March 28, 1970. In March, as well as in November,

1970, the recitations of authority clearly indicate that

the Secretary intended to publish for inclusion in the

Code of Federal Regulations the statutory interim

standards (e.g. § 75.400) and to promulgate the stand-

ards under Sections 811(j) and 861(d) and interpre-

tative regulations under Section 957.5 I ean find no

*The promulgation statement of the Secretary appearing on

March 28, 1970 in the Federal Register reads as follows:

“Parry 75—Manparony Sarrry Sranparps, Uxpercrocxp Coa

MINES

“Part 75-—-Mandatory Safety Standards. Underground Coal

Mines, reading as set forth below, is added to Subchapter O of

Chapter I, Title 30, Code of Federal Regulations. This part

includes mandatory safety standards for undergrovnd coal mines

which ave set forth in Title IIT of the Federal Coal Mine

Health ard Safety Act of 1969, other mandatory safety stand-

ards issued pursuant to that title and section 101(j) [30 TSC,

§8/1 (j)| of the act. and interpretations and supplementary

regulations. Because Title IIL of the Federal Coal Mine Health

and Safety Act of 1969 becomes effective on March 30, 1970, it

is impracticable either to give notice of proposed rulemaking on,

or to delay the effective date of, any of the provisions of the

part. Part 75 shall become effective on March 30, 1970.

Warren J. Hicker,

Secretary of the Interior.

| Emphasis supplied] 35 Fed. Reg. 5221

cd * ad us *

“Authority: The mandatory safety standards in this Part 75

either appear in, or are issued pursuant to, Title III of the

ae ee. is . Y

14a

manifestation of intention by the Secretary to amend,

revise or improve the statutory Interim Mandatory

Safety Standard, nor do I find that such was the effect.

My concurrence in the result is based on the con-

clusion that, in the posture of this case, the particular

regulations at issue here ($$ 75.400-1 and 75.400-2)

are infirm because they substantively alter the interim

standards on the subject and, perforce, their promul-

gation required conformance with Section 811(a)-

(g).° Since the Secretary admittedly did not utilize

Section 811, and since, in my opinion, other rule-

making grants in the Act do not permit such sub-

stantive alterations, Sections 75.400-1 and 75.400-2

are invalid.

This was not to say, however, that other regulations

contained in 30 C.F.R. Part 75 would necessarily be

invalid, because they might be sustainable under the

other rulemaking grants in the Act. This determina-

tion «vid only be made after consideration of in-

Continued

Federal Coal Mine Health and Safety Act of 1969, Public Law

91-175: other sections in this part are issued pursuant to

$ 101(j) and § 508 of that Act.

“Notr.—The provisions of this part marked [statutory Pro-

vision] appear in Title IIT of the Federal Coal Mine Health

and Safety Act of 1969." 35 Fed. Reg. at 5223.

*T have no difficulty determing that the “clean-up program”

requirement. appearing in Section 75.400-2 is “substantive” in

nature and thus beyond the permissible scope of his rule-making

authority under the Act. The definitions contained in Section

75.400-1 present a much closer question. On this appeal. how-

ever, the government concedes that it could not make a prima

facie case against defendants in Count VII of tne indictment

without both regulations. On that basis, then, given the fact

that we must apply the principle of strict construction in criminal

matters, T conclude that these definitions also impose an additional

burden on coal mine operators and therefore the regulation can-

not be sustained as being merely interpretative. See Gibson Wine

Co. v. Snyder 194 F.2d 329 (D.C. Cir. 1952).

15a

dividual regulations with reference to the other

appropriate rulemaking grants of the Act, i.e. 6 811

(j), 861(d), and 957.

Thus, I am unable to concur in the majority opinion

insofar as it may be read to hold that the Secretary’s

admitted failure to follow the provisions of Section

811(a)-(g) results in the invalidity of all regulations

promulgated in November, 197), which are codified at

30 C.F.R. Part 75.

_ APPENDIX B

United States Court of Appeals for the Sixth Circuit

| No. 72-2177

Usirep States OF AMERICA, PLAINTIFF-APPELLANT

Fixtey Coat Company, A PArtNersHiP, AND CHARLES

FINLEY, AN INDIVIDUAL, DEFENDANTS-APPELLEES

Before McCrer, Circuit Judge, O’SuLitivan, Senior

Circuit Judge, and Pratt, District Judge

Judgement

‘

_ Appeal from the United States District Court for

the Eastern District of Kentucky.

This cause came on to be heard on the record from

the United States District Court for the Eastern Dis-

trict of Kentucky and was argued by counsel.

On consideration whereof. It is now here ordered

and adjudged by this Court that the judgment of the

said District Court in this cause be and the same is

hereby affirmed and the case is remanded for further

proceedings.

It is further ordered that Defendants-Appellees re-

cover from Plaintiff-Appellant, the costs on anpeal,

as itemized below, and that execution therefor iss.1e

out of said District Court.

Entered by Order of the Court.

James A. Hiccins, Clerk.

A True Copy.

Attest:

Joun P. Henman, Clerk.

(16a ),

APPENDIX C

United States Court of Appeals for the Sixth Circuit

No. 72-2177

UNItTeD STaTEs OF AMERICA, PLAINTIFF-APPELLANT

THE Fixiry Coan Co., A PARTNERSHIP, AND CHARLES

FINLEY, AN INDIVIDUAL, DEFENDANTS-APPELLEES

Order

Before: McCrer, Circuit Judge, O’SULLIVAN, Senior

Circuit Judge, and Pratt,’ District Judge

Upon consideration of the petition for rehearing

with the suggestion that it be heard en bane, and no

judge of the court having requested a rehearing en

banc, the petition to rehear has been referred to the

hearing panel which is of the opinion that said peti-

tion for rehearing is without merit, accordingly, it is

ordered that the petition for rehearing be, and it

hereby is, denied.

Entered by order of the court.

Joun P. Heuman, Clerk.

*The Honorable Philip Pratt, Judge, United States District

Court for the Eastern District of Michigan, sitting by desig-

nation,

(17a)

APPENDIX D

In the United States District Court for the Eastern

District of Kentucky, Jackson

Criminal No. 10,303

UNITED STATES OF AMERICA, PLAINTIFF

FInLtey Coat Company, A PARTNERSHIP, AND CHARLES

FINLEY, AN INDIVIDUAL, DEFENDANTS

MEMORANDUM OPINION

The matters under consideration arise under a Mo-

tion to Dismiss all or several specific counts of a crimi-

nal indictment charging violations of the Federal Coal

Mine and Safety Act of 1969, Pub. L. 91-173, Dee. 30,

1969, 83 Stat. 742, 30 U.S.C. 801.’ The defendant Fin-

ley Coal Company is a partnership which prior to and

on December 30, 1970, operated two coal mines at Hy-

den, Leslie County, Kentucky. The defendant Charles

Finley is a partner of the defendant coal company. On

December 30, 1970, there was an underground explo-

sion in the interconnected mines; the consequences of

that explosion in terms of fatalities are not material

’ The legislative history of the Act will be found in the fol-

lowing documents: IER. 91-563. TLR. 13950 (Comm. on Edue.

& Labor), PLR. 91-761 (Comm. on Conf.) : S.R. 91-411 (Comm.

on Labor & Pub. Welf.). Congr. Ree. Vol. 115 (1969): Sept. 25,

26, 20, 302: Oct. 1. 2. 27. 28. 29; Dee. 17 House agreed to

Conf. R: Dec, 18 Senate agreed to Conf. R.

(1S:n)

to the present case” The consequences of the explosion

which are material to this case ave charges of multiple

Violations of the Coal Mine and Safety Aet of 1259,

wleged to have occurred on that date and duis the

period from June 22, 1870 to January 26, 1971. On

February 23, 1971, the Department of the Pitemer,

Bureau of Mines, tendered to the de“cadant Finley

Coal Company a proposed Order of Assessnront of

Civil Penalties ti

MSsix Hmdred (852.600.0080) Dolhovs. Pie cider was

protested and upon modjfieation, the sima of Pitty

Three Thousand Hight Hundred (855,800.06) Dolla:

was sought. The amended order lias been protested.

No payment has been made as a result of the eivil

proceedings. On June 25, PTT, a chant ba diet rans!

was returned against the defendeat evn! eorpany and

pa ee e TN oda TRE f ‘

he anounit of isty Lirree dace

NSS |

‘ot

Charles Finley charging exeh, im sibiee oid Contits

with violations of savety seaming estafilizhed in Ssaiib-

chapter Pif—Interiin Mandatory Safety dstamcaids

Por Undergrennd Coal Mires, 30 U.S.C, SOL thi

Sis.

The defepdants have filled two motions whieh for

this consideration will be treated es a sinvle Motion

to Deisiiies. Pile 12 LR. Cia. Prac, fos leallv, TWwo

quest ious ave raised hy the Motion to Pisniiss: first,

that the dual eivil and erininal proecediics viewete

the defendants’ Sth Amendment rights aeutiet beim

twice placed in jeapurdy for the sanie offensor Moco,

that the Seeretary of the Pnterior violated the pie-

Visions of Section S11(¢). 30 U.S.C, in proiileating

“Port T5—Maiudatory Safety Standards, Unider-

?Thirty-cight of Thirty-nine miners underground dled in the

explosion, No count of the indictment makes material to this

enee the detail of the death of any fotally injured miner. except

as it might apply to the allegation under 30 USC. ST70n).

Counts V and VI of the indictinent,

exe

204

ground Coal Mines” * and this violation is of sufficient

Iagmitide to compel dismissal of the indictment. De-

foridants” contentions will be considered in the order

stated,

I. DOUBLE JEOPARDY

Defendants seek dismissal of Counts If, ['V. VT.

Wie, VIEL, EX, BN, RE ee oe I RT

NNTE NNT and XXTV allecine that to proceed on

these counts would constitute double Jeopardy in view

of a pending civil administrative proceeding which,

defendants contend, is punitive in nature. Another

ground—violation of the intent of Congress in passing

the legislation and the purpose announced in Section

109 of Act by the eriminal and civil actions—is

raised, No merit is found in the latter argument in

view of the clear intent of the Congress to impose

both civil and criminal sanctions to implement. its

findings and declaration of purpose, 30 U.S.C. 801.

Although defendants contend that both the indi-

vidual and the partnership defendants are cited in

the pending administrative proceeding, the face of

the Proposed Order of Assessment issued February

23, 1971, shows that the assessment is limited to Finley

Coal Company. Since the recovery of a civil penalty

is not clearly sought against Charles Finley, individu-

ally, he will not be heard to contend that he has been

subjected to the alleged double jeopardy. The ques-

tion will be considered in relationship to the coal

company.

It is settled that the Congress may constitutionally

impose both a civil and a criminal sanction in the

same Act for the same offense, Helvering v. Mitchell,

* Federal Register, Vol. 35. No. 226, Friday. November 20,

1970, Part TT. Department of the Interior. Bureau of Mines,

Mandatory Standards, Underground Coal Mines.

21A

303 US. 291 (198%): Res Trailer Co., Ine. v. United

States, BHO ULS. 391 (1956). A defendant is placed

in jeopardy only in those eases where the action is

“intended to authorize criminal punishment to vindi-

ente public justice’. (LS. cr rel Marcus v. Hess, 317

U.S. 537, 549 (1943). Where a statute provides an

administrative civil proceeding with right of appeal

to the courts for a trial de nove, 30 ULS.C. 819(2) (4),

as to any civil assessment, the “[e]ivil procedure is

incompatible with the accepted rules and constitutional

guaranties governing the trial of criminal prosecu-

tions, and where civil procedure is prescribed fer the

enforcement. of remedial sanctions, those rules and

cnaranties do not apply’. Helrering vy. Mitchell, 303

US. 391, 402 (1938). The assertion that a civil assess-

ment of Fifty Three Thousand Eight Tundred

(#52.800.00) Dollars necessarily places the defendant

coal company ina punitive circumstance, is upon con-

sideration of some sixty individual violations over a

period of seven months certainly not conclusive. The

civil penalties range from a Twenty-Five ($25.00)

Dollar assessment to the maximum of Ten Thousand

($10,000.00) Dollars. Whether or not the proceeding

will terminate, if prosecuted through all appellate

steps, in any penalty being asserted on alleged viola-

tions identical to those charged in the indictment

ennnot be known at this time. To say that the insti-

tution of civil proceedings per se imports any concept

of jeopardy on the defendant goes far beyond any

authority brought to the attention of this Court. To

make the tenuous assumption that ‘jeopardy’? may

apply to a “civil” proceeding within the meaning of

the 5th Amendment is one thing; to contend that it

attaches at the outset of such proceeding is another.

We know of no rule which warrants such construction.

eat ee The

+ ee aS

* tte J

Votre

22:

To adept defendant's arenmeat work’. in preetical

eFeet, har every eviminal prosecution under the Act.

Under Scetion 81972) (1), the Secretary ts directed by

the mandetory word, “shall, to i pore ae eivil penalty

er oy eperite who violates a riandatory benlth or

safety standard. Even though the civil penalty soneht

against the defendant is a substantiel smennt. the

mer of OHegod vi tettoms ve dyed repent od PNSTOG-

tions of defendant's mines and a Himior tivestiertion

followine the explosion of Decomher OY ISTO The

SOT ME Fe Conte ypercy legen Lick 3 Wits * pylitpe tisat

the asserted civil rernaltios dn this «

cose are other thon

remedial,

Lovier Hy, Coneress dees nef expose a defendant

tice te jeopardy by establishing eommrchen<ive honey.

ties whieh may he immosed in SERONOTO Droeced ties

Inston d of a sinede getion where the st tute sot

cle stridor. rec iilytinyes the TPR REST of

Fort’

One OT

Ineo OF suel comprehensive penalties, (Soe the ean-

ercrng opinion of Mr. Tustice Prentiss Y, f 8, ex

rl Merens vy. Hess. ort U.S, S87. 5355 (1G99))) The

threat of a civil assessment and a eriminal penalty

arcinest the Finley Coal Company under the Coal Mine

Health and Safety Act of 1969 doos not constitute

double jeopardy within the meanine of the 3th Amend-

nent, Clearly, the Congress did. in fort, in the Net

establish comprehensive penalties to he Imposed under

stated conditions, some of which are civil and remedial

‘The official report alone je a docmment of

rfle-ting extensive investigation. laboratory

neering, One may not well areue thet the asseried: imypesition

of Fifty Three Thousand Eight Hundred (FS3.S00,00) Dollars

in civil penalties was so excessive in re]

i tcotiper ght

ome OS pees

ana Ivse sand engi-

ation to the government's

defendant's mitniner Operations as to

moessitate a fiudine of AEN PUNITIVE aspect to the civil pro-

233A

in nature and which are to Le applied nider elaborate

Civil mrocediuves and ofhers eriminal in nature to be

soneht only acainst wilful vielaters of a mondatory

health or savety standard. 30 U.S.C. 819. Theat all

sanctions imposed by the Aet—civil and erminal—

seck to insure compliance with the mandatory health

and safety standards certainly does not suggest any

lnpropriety,

1, RULEMAKING

very.

The nretter in eoutention is simply stated, The de-

Tondaits tisist that the Seeretery of the Dnterior in

provitesting standards, Pert 73—Mandatory Safety

Standards, Undereronnd Coal Mines, was oileed to

follow the procedure of 30 UIS.C. S1tte). The United

States contends that the Seeretary property proceeded

under OO TLS, SCLC), Phere ts me question that the

Secretary didi proceed under and “Poluvsnant to the

autherity of verceriph (2) of Seetion 2Ob of the

Coal Mine Health Safety Set of 1OCG Moetton POT

of the Aet is codified at 30 UUS.C, 861.

At issue is whether the Seeretary cas under duty

egrye ys

to constlt with specifeatty named elesces of ietere tod

Dersots gs og eoudittorm to prdtper on Dae ee ee

The sienificont lansuage of 20 U.S.C, 81b Ce) isso fitn

the development and revision of mandatory sa ty

standards, the Seeretery shall consult with * * * 2p

proprinte representatives ef the cool inine eneraters

ad piers * * 9." Cider the section relied on iy the

Secretary, the statutory direetton is expressed in the

following Jancnave, 30 ULS.C. 8610d): "iim any case

Where the provisions of Sections 862 to S78, inelnsive,

of this tithe provide thot certain actions, conditions,

or requirements shall be carried out as preseribed by

* Federal Register. Vol. 34. No, 226. PL 17s90, Nov. 30. 1970,

2A a DRS Re ar NE eed ee Rh ee

244

the Secretary * * * the provisions of section 553 of

Title 5 shall apply * * * ”.

The resolution of the issue depends upon what the

Secretary did—whether he engaged in rule making,

S11(¢), or discharged a directive contained in See-

tions 862 through 878—and his announcement, on its

face, seems perfectly candid: °

Part 75 of Title 30, Code of Federal Reenla-

tions, Subchapter 0—Coal Mine Health and

Safety—Mandatory Health and Safety Stand-

ards, amended and revised as set forth below

is herewith promulgated. (Emphasis added.)

The question is not whether the Secretary had the

authority to amend and revise the Mandatory Health

and Safety Standards, whieh he clearly does, but

whether he discharged that authority within the cen-

ditions specified by the Congress.

The authority to engage in general rule making is

granted the Secretary in Section 811(a), 30 U.S.C:

The Seeretary shall. in accordance with the

procedures set forth in this section. develop.

prom ilgate, revise, as may be appropriate, im-

proved mandatory safety standards for the

protection of life and prevention of injuries in

a coal mine, and shall, in accordance with the

procedures set forth in this section, promulgate

the mandatory health standards transmitted to

him by the Secretary of Health, Education, and

Welfare.

The authority to act on the interim mandatory safety

standards which are the subject of Subchapter ITT

of the legislation, Sections 862 throngh S878, is granted

to the Secretary in Section 861(a), 30 U.S.C.:

The provisions of Sections 862 through S78

of this title shail he interim mondatory safety

standards applicable to all underground coal

—_—

”

Il.

25A 7

mines until superseded in whole or in part by

improved mandatory safety standards — pro-

mulgated by the Secretary under the provisions

of Section 811 of this title * * *.

The language of Section 811(¢) requires consultation

with specifically named classes within or materially

concerned about the coal industry in “the development

and revision of mandatory safety standards”. The

Secretary has proceeded to amend and revise the man-

datory standards without such consultation, The argu-

ment has been considered that the Secretary did not, in

fact, engage in the “development and revision of

mandatory safety standards” notwithstanding the

use of the words ‘amended and revised” in_ this

promulgation directive. The effect of the standards

issued by the Secretary cannot be classed as merely

explanatory of the various sections of the Act since

these rezulations impose definite standards, the viola-

tions of which would make the offender subject to

civil or possible criminal penalty, and where the

language of the standards is by way of definition, the

definitions stated determine the point at which a

possible offense would be established in fact. It would

not be necessary for the Seceretary’s actions to alter

or amend the language of the interim safety standards

announced by the Congress in order for Section

S$11(¢) to apply. It is in the very area of implement-

ing the intertn safoty standards contained in the Act

that Congress directed consultation. The failure to ¢on-

sult defeats the intent of the Congress in the rule mak-

ing area: securing the advise and cooperation of the

entire coal industry and appropriate Federal and

State governmental agencies in the setting of stand-

ards for the **protection of life and prevention of

injuries in a coal mine”. The degree of concern ex-

pressed by the legislation as to the requirement of

pete

met: Reece:

264

con-nitation is evidenced by use of the mondatory

verb “shall” and neither this Court nor the Seeretary

canavoid the conseanences of such directive.

To bring the amended and revised standards within

the scope of Section 861(d) authoritv—and thereby

sustrin the action of the Secretamv—it is necessary to

determine that the issuance of the standards con-

stittites the discharge of some “eortain actions, condi-

tions, or reqnirements” to be carried out ns preseribed

by the Seeretary in-Sections 862 through &78. These

sections simply do not support 2 lovient constriction

justifving general rule lacking in the face of Seetion

Sii(a), (bh) and (¢) in the area of safrewy standards,

Ne orie of constimetion has been presented authoriz-

ine the Court. te ignore the elenp lstiguoce of the

“tatute, ;

Nine interim mandatory sp fery stomdord.s ere cited

In the pending indietment, Fy’. mre! those vtamlards

the Seevetury is eiven specitic authoritv:; in five the

Seeretary Is Not eiyen sowetfie mryth rite, Tn Sections

Sutin), 86464), 8660), 87309) and 873(+) the lvn-

gave ts silat as te speeife authority delovated to the

Seeretary, In Section 864(b) the Sceretary is given

authority te approve “or no loss effective methods” to

pecaotey]ish the obioet of the Section, Ii Section

See), Et }he Seeretary may. nder sueh safeereds

ts he may preseribe, permit the fring of trove then

twenty shots and the nse of nonperniscble explosives

in sivking shafts and slopes from the surface pork’,

In Sections ST7(e) and (n) the Secretary is given

authority to approve, in the former, the plan to keen

sinoking materials and the like from the ndergromund

arearond. in the latter, to avprove a selfresene deyice

Which shall be made available to exch miner “adequate

to protect stich miner for one hour or longer’. Con-

sidering the statutory definitions contained in 30

Q7A

U.S.C, 878, which are by construction a part of the

sections reviewed, the legislative plan of giving

specific direction and authority to the Secretary is

repeated.

Where the regulations or standards promulgated by

the Seeretary are in response to authority granted in

Sections 862 through 878, the regulations are proper

and will apply in the trial of this case. But where the

regilations published on November 20, 1970 by the

Secretary do not reflect the exercise of anthority

granted in the provisions of Sections 862 through STs,

we hold the authority for issuing such standards lies

in Section SUL and the comtitions imposed by Section

S1i(¢) are applicable. Since no arguement is made that

the Seeretary purported to act under Section S11, we

hold that all nom-conforming reeniotions epoliesbte

to the nine interim mandatory safety standards cited

in the indictment are invalid and shall not amply in

the trial of this case. No other regulations pronmial-

vated by the Seeretary are before the Court.

The holding of defective rule mocking, however, does

not Warrant the dismissal of the indietment. The vio-

lations ateged in the indictment are cited as violations

of interim mamdatory safety stendards established by

the Congress, The absence of augmenting stondard«.

While affecting the nature and perhaps the dittenlty

of proof, cannot affect the maintenance of the procecd-

ine. However, to insure that both parities to this liti-

vation are protected in their rights to a fair trial.

the determination has been made that under the ruling

herein made the United States probably cannot make

®t prima facie case against the defendants under Count

No. VIL of the indictment without the additional

standards and definitions contained in 75.401 and

75.402. Since an immediate review of this Court's rul-

wi ea wae Rw RR ok ean A ott

28a

ing is warranted, Count No. VII of the indictment

will be dismissed.

An order will be entered forthwith in conformity

with this Memorandum Opinion overruling the Motion

to Dismiss on the grounds of Double Jeopardy

and violation of the intent and purpose of the Act;

overruling the Motion to Dismiss, in part, on the

grounds of defective rule making; and, sustaining

the Motion to Dismiss as to Count VII of the indict-

ment on the ground of defective rule making and

apparent inability of the Government to make a

prima facie case against the defendants on the statu-

tory language alone.

This 7 day of July, 1972.

H. Davin HermMansvorrer, JUDGE.

APPENDIX E

In the United States District Court for the Eastern

District of Kentucky, Jackson

Criminal No. 10,303

UNITED STATES OF AMERICA, PLAINTIFF

v’.

Fintey Coat Company, A PARTNERSHIP, AND CHARLES

FINLEY. AN INDIVIDUAL, DEFENDANTS

SUPPLEMENTA!T. MEMORANDUM OPINION.

It is important to remember that this case is a

criminal action seeking the imposition of felony sane-

tions on each count of a twenty-four (24) count in-

dictment pending against the defendants. This Court

is bound in a criminal prosecution to the rule of strict

construction which applies to administrative regula-

tions to which penal sanctions attach as well as to the

statute itself. United States v. Mersky, 361 U.S. 431

(1960). Where a material question is directed to the

procedural requirements for the issuance of such

punitive regulations, we find the rule of strict con-

struction is equally applicable.

The Assistant United States Attorney, Mr. Webb,

has filed a Motion to Reconsider the Opinion filed

July 7, 1972, as to rulings on the disputed regulations

supported by an excellent Memorandum Brief. How-

ever, it is not a proper function of this Court to adopt

rehabilitative measures in a criminal case on behalf of

the prosecution. To do so would remove us from the

(29a)

be De eee

id nek db ee

304

basie fact material to the question raised by the de-

fendaits. It is conceded that Plaintiff would be en-

titled to some relief from the conclusions expressed

| in the Memorandum Opinion of duly 7, 1972, under

the arguments in the brief were it possible to ignore

thé fact that the Seeretary specified that he was is<u-

ine the regulations underthe authority of “paragraph

(d) of Scetion SOL of the Coal Mine Health Safety

Act of 1969", which is codified at 30 U.S.C. 361(d).

This Court has no authority te change thle prononnee-

nent of the Sceretary or to permit it to be changed by

counsel, The duty of the Court is “to see onty that

the restit ix reasonable and within the range of euthor-

liy conveyed, that it has heen ferninlated in the nan-

her preseribed, and that the disappoint d have had the

opportunity provided by Congress to try to make their

Views prevail”, Automotive Parts & Accessories Assi.

Vv. Boyd, 407 F.2d.230, 345, (D.C. Cir, 1908).

The statutory scheme of the Aet echiliis sovern!

grents of rulemaking authority of whieh three «)

were Clearly aveilable to the Seere:

Vs: 300 PY Ome te

61d) and 957 to stuppert the isseanee of poeletions,

The power delegated in Section SUL ix limited to the

on-coipe direction to Iiprove the safety stondards to

regitlote the operation of coal nines, The dircetion in

Section S61(d) is limited to discharge of Cuties iin

posed on the Secretary by the dancuage of the interiin

nuudatory safety stomdards and does not relate te any

other subject, Clarification of this conciusion mar be

had = by coustiting the Senate-TPouse Conference

Report: :

» The Senate hill provided that. where the

safety standards in this title Provide that the

Seeretary pre-crie how eevtain actions, condi-

tions or requirements be carried out, the mile-

5 Congr satan Le cord, Dec. 16, 169, T2577.

314A

making provisions of 5 U.S.C. 553 will apply,

unless the Secretary otherwise provides. ‘The

House amendment had no comparable provi-

sion. The conference agrecinerit adopts the Seti-

ate provisions with a modification to recognize

that the Secretary of Health, Education and

Welfare also needs this authority. This provi-

sion is not intended to apply when a safety man-

datory standard is being proposed. In lien of the

rulemaking provisions, the Secretary could

utilize the procedures of section 101, (Section

101 is codified at 30 U.S.C. 811)

The subject of Section 957 is a general grant of

rulemaking authority to both Secretaries and the

advisory panel.

The Secretary chose to exercise the authority of

30 U.S.C. 861(d) alone and not to incorporate the

general administrative ruie making authority of 350

U.S.C. 957. The sole question is whether section

861(d) properly may be construed to bring the sub-

ject regulations within its range of authority.

The obvious limitation on section 861(d) is con-

tained in the words of the statute:

(d) In any case where the provisions of sec-

tions 862 to 878, inclusive, of this title provide

that certain actions, conditions, or requirements

shall be earrvied out as prescribed by the Secre-

tary, or the Secretary of Health, Education,

and Welfare, as appropriate, the provisions of

section 553 of Title 4 shall apply unless either

Secretary otherwise provides, Before granting

any exception to a mandatory safety standard

as authorized by this subchapter, the findings of

the Seeretary or his authorized representative

shall be made publie and shall be available to

the representative of the miners at the affected

coalmine.

The statement of the Conference Report does not

support an expansive construction of the language;

rather, even within the scope of applicability of the

provision if the “certain actions, conditions or re-

quirements” involve the proposal of a safety standard,

the provisions of the section are not intended to apply

to such safety standard.

The provisions of 30 U.S.C. 861(d) do not apply

outside the specific statutory safety standards eon-

taining directions to the Secretary. Therefore, this

section is not authority for general rule making as

might be exercised under the Administrative Proce-

dures Act, 5 U.S.C. 553 (or 30 U.S.C. 957 which by

construction would incorporate implementing proce-

dures no less rigid than 5 U.S.C. 553). Section 957

eannot be impliedly incorporated into 30 U.S.C. 861 (d)

in a eriminal prosecution under the rule of. strict

construction,

We have been persuaded that an examination of

the entire legislative history is hececssary to a con-

sideration of this question? The sense of the legisla-

tive history makes clear that the words “standard”

and “rulemaking” are used as words of art. “Stand-

ard” is used in the sense of substantive matters.

“Rulemaking” is employed in the sense of adminis-

trative housekeeping and procedural details. Under

the rule of strict construction and in keeping with

What we believe to be the sense of the Congress, we

determine that no regulation to be employed as a part

‘*fiwentalen B. Fosson, Legislative Wistorys Research for

he Tutevprotation of Laws. The University of Virginia Press,

Charlottesville. Virginia, 1972. The full legislative history is

cited in footnote 1 of the Memorandum Opinion filed herein

on July 7, 1972,

33A

of the law to which criminal penalties attach can be

deemed other than a regulation involving a “standard”’.

In this case, therefore, we conclude that the

distinction urged by plaintiff between “interpretative”

and “legislative’’ regulations—although recognized

generally in administrative law—should not be applied

to the construction of this law since all disputed regu-

Jations are cited in the indictment as authority, to-

gether with statutory provisions, for maintaining the

criminal prosecution.

Accordingly, we find that we cannot grant Plaintiff

the relief requested.

An Order will be entered forthwith overruling the

Motion to Reconsider and setting aside the Order sus-

pending entry of the Order directed by the Memoran-

dum Opinion of July 7, 1972. The former Order will

be entered.

The Memorandum Opinion is amended to define the

scope of applicability of the determination of invalid

rule making to all regulations material to this pro-

ceeding except the regulations issued under the au-

thority of statutory directions or options contained in

the language of the interim mandatory safety stand-

ards cited as authority for maintenance of this action.

This 11th day of September, 1972.

H. Davin HERMANSDORFER, Judge.

A True Copy, Attest:

Davis T. McGarvey,

Clerk, U.S. District Court.

US GOVEPNMINT POINTING OFFICE to74

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